Deportation, Social Control, and Punishment: Some Thoughts about Why Hard Laws Make Bad Cases

Abstract

From the Author’s Introduction: We live in a time of unusual vigor, efficiency, and strictness in the deportation of long-term permanent resident aliens convicted of crimes. This situation is the result of some fifteen years of relatively sustained attention to this issue, which culminated in two exceptionally harsh laws: the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In many cases, these laws have brought about a rather complete convergence between the criminal justice and deportation systems. Deportation is now often a virtually automatic consequence of criminal conviction. This convergence, and the harshness of these laws – their retroactivity, their use of mandatory detention, the automatic and often disproportionate nature of the deportation sanction, and the lack of statues of limitation – raise two related questions: First, why are we doing this? Second, what could be the consequences of this approach for the constitutional legitimacy of deportation proceedings?