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.’

Maricopa County Sheriff Joe Arpaio (Photo: REUTERS/Laura Segall)
More recently, however, Sheriff Arpaio has discovered that unauthorized migrants are another worthy target of his energies. In this, he’s been aided by the voters of Arizona. Over the past decade―and particularly in the period from 2005 to 2010―Arizona voters have supported a number of bills and ballot initiatives aimed at facilitating the identification and removal (or the ‘self-deportation’) of unauthorized migrants in the state. Litigation over two of these measures reached the US Supreme Court in recent years. In 2011, for instance, the US Supreme Court upheld the Legal Arizona Workers Act (LAWA) which authorized the state to revoke the state-issued business licenses of employers that failed to verify the legal status of their employees. In 2012, the Supreme Court heard a challenge to S.B. 1070―a law with criminal and civil law provisions ‘intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.’ The Supreme Court struck down several key components of S.B. 1070 on the ground that they were preempted by federal immigration law. In deciding the 2012 case―US v. Arizona―the Supreme Court reiterated the legal principle that the US federal government has the sole power to enact and enforce immigration laws, and that the states cannot enact laws aimed to supplement or conflict with federal immigration law and policy.
 
This past year, the Supreme Court was asked once again to assess the legality of an Arizona law targeting unauthorized migrants. On 1 June 2015, the Court declined to hear an appeal from a decision by an eleven judge panel of the Ninth Circuit Court of Appeals in the case of Lopez-Valenzuela v. Arpaio. The case should be of interest to readers of this blog because it squarely speaks to issues involving non-citizens in the US criminal justice system.
 
Lopez-Valenzuela involved a challenge to Arizona’s Proposition 100, a law enacted by popular ballot initiative in 2006 that required the categorical denial of bail ‘for serious felony offenses as prescribed by the legislature if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the present change.’ Under the law, unauthorized migrants charged with certain felonies would be denied bail automatically, even when similarly situated citizens or lawful permanent residents could receive bail. The initiative highlights the confluence of the harshly punitive elements of what Professor Mona Lynch (who has studied Arizona criminal justice policy extensively) has termed ‘sunbelt justice’ with the criminalization of migration.

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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:

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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]).