New Publication on Criminal Justice Adjudication and Mass Migration

Post by Ana Aliverti, Associate Professor, Warwick University Law School. Ana is on Twitter @a_aliverti.

Last March, Mary Bosworth and I hosted a two-day symposium in the Centre for Criminology at Oxford to explore the new role that criminal justice institutions play in the management of migration and border controls. The workshop, which was generously funded by the British Academic Rising Star Engagement Award (BARSEA), brought together established and early career scholars from the US and Europe. The new special issue in the New Criminal Law Review is one of the outcomes of this collective endeavor.

The articles are united by a shared set of questions about the salience of citizenship in contemporary criminal justice policies and practices. As such, they offer important empirical and theoretical evidence of the shifting global terrain. In particular, the articles in this collection address three distinct, yet interconnected, matters: migration control and state sovereignty, fairness and equality, and politics and policy.

In relation to the first cross-cutting theme –migration control and state sovereignty-, authors raise a series of questions: How do migration controls expand penal power beyond the nation state? In which ways is the exercise of state power connected to geopolitical hierarchies on the global scale? How do these hierarchies enable that power? And to what extent does the exercise of state power contribute to reinforce global hierarchies?

The second cluster of questions addressed relate to equality of treatment and fairness: What are the unique challenges encountered by foreign nationals in criminal courts? How do their established or alleged identity as “foreign nationals” or “migrants” shape criminal justice dynamics and outcomes? In which ways does “foreignness” entice and reinforce more familiar gendered and racialized stereotypes in criminal justice practices? How do these and other markers of difference, such as language proficiency and cultural difference, contribute to bolster existing social hierarchies?

Finally, authors explore the relationship between migration and criminal justice politics and policies. Specifically, in which circumstances, and why, does border control legitimize crime control and criminal justice measures? How do concerns about migration work to reorient the aims, practices and sites of criminal law enforcement? What are the consequences of the conflation of crime and migration control powers? In which ways and to what extent are the politics of immigration related to the politics of crime control?

While these themes serve as the common thread for the collection, individual contributions concentrate on one or more of them.

In the first paper, Ingrid Eagly reflects on contemporary US politics and policies on crime control and border controls, noting two seemingly contradictory trends. On the one hand, there is growing consensus that the heavy reliance on incarceration needs to be substantially curtailed with bipartisan support for parsimonious penal policies aimed at reducing prison rates. On the other hand, however, the concern for mass incarceration, and harsh and disproportionate punishment has largely overlooked immigration enforcement, where non-US nationals –particularly Hispanics- are subject to ever tougher control policies and measures stemming from both immigration and criminal laws. Can these apparently contradictory trends be reconciled, Eagly demands, and how can we ensure that the decriminalization drive benefit also non-citizens? Her paper suggests a number of strategies for undoing these dynamics.

Focusing on mandatory prisoner transfer agreements, the second paper by Mary Bosworth offers an illuminating discussion of recent initiatives to deal with the increasing population of foreign nationals in prisons and detention centres in the UK. She shows how migration control initiatives extend the geographical reach of penal power by revitalizing Britain’s colonial ties in African and the Caribbean. She further explores how the rhetoric of what she calls “penal humanitarianism” legitimizes the increased intervention of British interests and priorities in the internal affairs of foreign states, while highlighting the tensions arising from the disparate and contradictory goals that these programs aim to achieve.    

Staying with prisoner transfer matters, Emma Kaufman’s contribution delves into US prison repatriation agreements with other countries, concentrating on how these treaties are meted out by the bureaucrats on the ground. She notes that while policymakers have been busy expanding deportation provisions to ensure foreign national offenders are thrown out of the country serving their sentence and signing treaties with other countries to allow their citizens to serve their US sentences abroad, prison officials are often reluctant to send people back. She focuses on the internal opposition to these expulsion methods revealing considerable reluctance on the part of US administrative officials to delegate their authority to punish abroad.

Turning away from the prison, Jennifer Chacon demonstrates how international norms on human trafficking have been unevenly incorporated into state-level legislation with dissimilar results in various US states. She offers a convincing case study for how policies ostensibly aimed at fighting human trafficking have been justified and used with different purposes according to the political and ideological environment prevalent in each state in relation to immigration. Against expectations, she finds that the primary targets of these laws are not foreign nationals and points to the continuities in the policing of racialized groups in the implementation of crime policies.

Inside the courtroom, criminal justice dynamics and actors have been substantially altered by the presence of the “foreign national”. In their article, Ana Aliverti and Rachel Seoighe explore one such aspect of criminal justice adjudication under conditions of mass mobility shedding light on a wholly under-researched feature of criminal case processing – the role of court interpreters. The ability to comprehend and effectively communicate within criminal courts is fundamental for ensuring fairness, and it has largely been taken for granted within criminal justice research. As non-native defendants engross the clientele of the criminal courts, court interpreters have become a familiar figure in the courtroom.

The utilization of immigration law enforcement powers for a broader range of immigration control and crime prevention purposes is the central theme of the final paper by Maartje van der Woude and Jelmer Brouwer. In it, they examine the exercise of street-level discretionary decision-making by officials of the Royal Netherlands Marechaussee, the Dutch border control force, in the enforcement of the Schengen Border Code, by looking at a specific operation: the Mobile Security Monitor (MSM) in the Netherlands. While under Dutch law border enforcement officers are only authorized to combat illegal stay, identify fraud, and human smuggling in the context of MSM operations, the authors show that, in practice, officials have significant discretion in enforcing MSM protocols. Drawing on a range of empirical material, they explore the motives for stopping vehicles among MSM officials.

Our hope for this volume is that these articles open up new avenues of inquiry in border criminology and crimmigration law while contributing to broader debates on the new configurations of state penality. As mass mobility reshapes so many aspects of our societies, it should not surprise us to see that it is affecting criminal justice as well. Mass migration makes plain sheer global hierarchies and geopolitical inequalities in the exercise of power. In managing new arrivals, as well as their descendants, rich, prosperous states resort to new border control strategies while at the same time taking advantage of global relations of domination linked to their colonial past. Mass migration and its control thus bring home longstanding racialized and gendered questions about fairness and equality of treatment, while forging novel vectors of stratification in the exercise of punitive powers at the domestic level. While the articles in the collection raised timely and disturbing questions about the implications of these developments for the national criminal justice system, they also suggest ways to undo the damaging effect of the conflation of crime and immigration policies and practices for those subject to them. 

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How to cite this blog post (Harvard style)

Aliverti, A. (2017) New Publication on Criminal Justice Adjudication and Mass Migration. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/01/new-publication (Accessed [date]).