Post by Ana Aliverti, Assistant Professor at Warwick Law School, University of Warwick. This post is the first installment of the Border Criminologies Themed Week on Migration, Criminal Law and Criminal Justice organised by Ana.

This themed week’s blogs will explore different aspects of the intersections between migration, criminal law, and criminal justice. As social institutions are being shaped by unprecedented levels of human movement and the attendant set of controls, criminal justice systems in many developed countries are required to deal with a fast-changing population. For instance, those who are foreign-born make up a quarter of the US federal prison population, while foreigners constitute more than one tenth of the English and Welsh one. They also figure prominently in the prison populations of other European countries. While we don’t know precisely how often criminal courts deal with defendants who are non-citizens, a few days observation of court proceedings in lower courts sitting in the main cities of these countries is revealing of the nature and extent of the impact that mass migration and its control has had on domestic criminal justice systems.

This drastic demographic change unsettles the basic premises under which the criminal law and the criminal justice system functions. Perhaps the most important assumption is that the mandates of the criminal law chiefly address the members of a political community (their citizens) who at least in principle have a say in law-making and a duty to abide by it. State punishment is equally underpinned by such assumption. Again, at least in principle, convicted defendants qua citizens are required to expiate their wrongs and cleanse their bodies and souls to ultimately gain back their status as members. Yet, on a daily basis, the criminal courts are increasingly called to pass judgments on individuals who are excluded from political participation and are deemed to be territorially pushed out through the operation of stringent deportation regimes.

The rising numbers of non-citizen clientele of the criminal justice system poses more mundane but troubling challenges to its operation. As Paul Rock in his seminal work on the crown court explains, criminal proceedings are underpinned by a recurrent appeal to common sense. Common sense, Rock asserts, can be conceived as an ‘objectification of the practical knowledge that motivates, explains, and organizes mundane experiences.’ The importance of common sense in criminal proceedings takes for granted the existence of a single, uniform, and homogeneous frame of reference under which defendants, practitioners, judges, and juries operate. Such an assumption is, however, denied over and over again by abundant signs of normative fragmentation. For example, in a magistrates’ court hearing that I recently observed, one of the defendant’s family members, who was sitting in the public gallery, pulled out his mobile and took a picture of the proceedings. The hearing was interrupted, and he was taken into police custody and charged with contempt of court. In his defence, he argued that he didn’t know that he was doing something illegal since in his country this action wasn’t a crime. These and many other mundane episodes disrupt the seemingly smooth and monotonous pace of court proceedings, casting doubts at least for a moment on those deep-seated assumptions.

Quite basic questions which form the ‘bread and butter’ of the preparation of a case for practitioners, court administrators, and probationer officers often have no clear answers: does the defendant have any criminal record? Does s/he have any history of mental health issue? How strong is his or her connection to this country? Is s/he who s/he pretends to be? How likely is s/he to flee from the country before finishing his or her suspended sentence? The incomplete and imperfect factual basis on which life changing decisions are made casts serious doubts about the fairness of those decisions.

Yet, our knowledge about the fundamental challenges posed by mass migration to equal and fair criminal justice adjudication is patchy and anecdotal. My current research seeks to disentangle the importance of citizenship and migration status for criminal justice decision-making through the analysis of the daily business of the criminal courts serving Birmingham, one of the most diverse cities in the UK. Paradoxically, a key methodological pitfall we’ve encountered so far is the difficulty in identifying who is a ‘foreign national’ given that information about formal citizenship and/or migration status isn’t recorded by the courts. Such difficulty poses challenges for identifying and sampling cases of interest, and more generally for accurately assessing whether and how citizenship matters in criminal justice decision-making. It also illustrates the complexities in determining alienage and migration status.

This themed week offers a glance at the multiple and intricate ways in which migration matters for understanding current laws and practices, both in the UK and US. It draws together scholars working at the intersections of criminal law, criminal justice, and migration to share their research findings. Some of these contributors will be presenting their work in the forthcoming ‘Criminal Adjudication in the Age of Migration: An International Workshop’ at the University of Oxford in March 2016, which will bring together scholars from various jurisdictions with practitioners to share and exchange experiences, ideas, and challenges of conducting research in this area, and scrutinise current practices.

In the themed week’s second installment, Jennifer Chacon analyzes the court ruling which put a halt to recent proposals in Arizona to ‘legalize differential treatment of unauthorized migrants in the criminal justice system’ by excluding those charged with certain felonies from being granted bail. Next, Jasmine Nogo focuses on the vulnerability of non-US national juvenile defendants who are often at risk of being treated as adults and thus subject to deportation upon a criminal conviction, even for relatively minor offences. Moving to the UK, in the fourth installment, Rachel Seoighe looks at the most apparent features of cases involving foreign-nationals: the intervention of court interpreters. She draws attention to the ways in which interpreters significantly affect the pace and interactions in court hearing, and can dramatically shape the fate and course of the case―sometimes to the detriment of defendants. In scrutinising the function of the criminal law in the criminalisation of refugees, Yewa Holiday questions the very basis for holding them accountable according to general principles of criminal law. Drawing parallels with vagrancy laws, she suggests that laws criminalizing refugees are a modern revival of status liability and argues that these offences criminalize types of people rather than acts, thus disrupting one of the main tenets of liberal criminal law. In the final installment, Michael Light charts an agenda for future research on the intersections between immigration and criminal law, suggesting three main directions: increased international comparative research, an emphasis on robust methodologies to identify the mechanisms behind ‘legal inequality,’ and a better understanding of the impact of incarceration on foreign nationals and their families.Summarising some of the findings of her research, Ingrid Eagly’s blog examines the increased use of televideo in immigration hearings. She concludes that mediatised and remote adjudication impacts on the ability of the detainee to participate in his or her case and increases the chances of him or her being deported.

Together, the contributions for this themed week reflect on some of the most troubling aspects of the exclusionary edge of citizenship and its relevance to understanding the contemporary contours of punitive power.

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 JuneThe 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)

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How to cite this blog post (Harvard style):

Aliverti, A. (2015) Crime, Justice and Migration. Available at: http://bordercriminologies.law.ox.ac.uk/crime-justice-and-migration/ (Accessed [date]).