Wednesday, March 18, 2015
Migration without permission is a crime — one prosecuted much more often than it used to be. Illegal entry and reentry, crimes of migration, are the most prosecuted federal crimes. Prisons overflow with migrants serving time for entering the United States without permission — an act that does no harm to persons or property. The obvious — and undertheorized — question is whether criminal sanctions are appropriate here. I tackle this issue in this Article, arguing that criminal law theory, political theory, and theories of punishment all cut against criminalizing acts of migration.
Consider that the incarceration meted out to punish migrants for migrating comes on top of deportation. Yet deportation perfectly reverses the crime of migration.
Another problem: aliens have not consented to border laws, including to crimes of migration. We take for granted that this lack of consent does not matter, but that is a controversial position in contemporary political theory — and for good reason. The kind of power we wield at the border looks more like what a king does to his subjects than what a liberal democracy does to persons ruled by law. Couple the problematic foundation of border enforcement with the fact that malum prohibitum crimes are held up by democratic consent (which, again, crimes of migration lack) and we have another compelling reason to doubt that crimes of migration have any justification besides the raw justice of the sword.