CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, September 8, 2010

Markowitz on Deportation and the Civil-Criminal Distinction

Markowitz peter Peter L. Markowitz  (Benjamin N. Cardozo School of Law) has posted Deportation is Different on SSRN. Here is the abstract:

Over one hundred years ago, the Supreme Court emphatically declared that deportation proceedings are civil, not criminal, in nature. As a result, none of the nearly 400,000 individuals who were deported last year enjoyed any of the constitutional protections afforded to criminal defendants under the Sixth or Eighth Amendments. Among those 400,000 were numerous detained juveniles and mentally ill individuals who, as a result of the civil designation, had no right to appointed counsel. These individuals were thus forced to navigate the labyrinth of immigration law alone. Others were lawful permanent residents who had pled guilty to minor offenses upon the correct advice of counsel that they could not be deported. These individuals later became subject to deportation when Congress retroactively changed the law, unbound by the criminal prohibition against ex post facto laws. The dichotomy between the gravity of the liberty interest at stake in these proceedings - a lifetime of exile from homes and families in the United States - and the relative dearth of procedural protections afforded respondents, has always been intuitively unjust to some. However, over the past twenty years, as immigration and criminal law have become intertwined as never before, the intuitive sense of many has matured into a scholarly movement exploring the criminalization of immigration law. This movement has taken aim at the incoherence of deportation’s civil designation. Until recently, however, there was little reason to think the Supreme Court would wade into the waters of the resurgent debate over the nature of deportation proceedings. In Padilla v. Kentucky, 130 S.Ct. 1473 (2010), however, the Court surprised almost everyone as it went to great length to chronicle the criminalization of immigration law and ultimately concluded that deportation is - uniquely difficult to classify. The immediate impact of the Padilla decision is the critical recognition that criminal defendants have a right to be advised by their attorneys if a plea they are contemplating will result in deportation. However, I argue, that in time Padilla may come to stand for something much more significant in immigration jurisprudence. When we read Padilla in the context of the Supreme Court’s evolving immigration jurisprudence, there is good reason to believe that Padilla is a critical pivot point for the Court. Padilla marks the beginning of a significant reconceptualization of the nature of deportation toward the realization that it is neither truly civil nor criminal. Rather, deportation is different. It is a unique legal animal that lives in the crease between the civil and criminal labels. This article explores the evolving arch of Supreme Court jurisprudence regarding the quasi-criminal nature of deportation proceedings and articulates a principled mechanism by which the scope of respondents’ rights can be defined under this new framework.

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I am not an attorney, but I think that it is absurd that the deportation of an individual living in the United States is a civil procedure. Deportation is essentially a sentence of exile, which under common law is a criminal punishment, which should thus invoke the rights associated with criminal trials.

I am not sure of the original Supreme Court decision which made deportation a civil punishment, but I wonder if they were considering the refusal of entry to a new immigrant or the deportation of an established resident. I think it may be possible to convince the courts to treat the two situations differently, with individuals in the latter case being granted the rights of criminal defendants.

Posted by: David Wainwright | Feb 28, 2011 6:02:18 PM

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