Legal Studies 443 Final Exam
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61 Terms
Which federal agency refers the most cases for federal criminal prosecution?
Department of Homeland Security (DHS)
Two most important determinants for sentencing
severity of the crime and criminal history
What is Crimmigration? Have there been changes to immigration enforcement? What are they?
A process generally referring to the increasing criminalization of immigration and the introduction of tools from the criminal justice system (e.g. police, prosecutions, and prisons) into migration control
Changes: increased use of local law enforcement in immigration policing, expansion of detention, and policies like Secure Communities that link local policing to federal immigration databases
Describe an indirect effect of deportation.
500,000 U.S. citizen children experienced the apprehension, detention, and deportation of at least one parent between 2011 and 2013.
Mental health and behavioral problem
Economic hardship
Problem → because of crimmigration people are often experiencing both because many of these people are experiencing an arrest, charge, sentence, and deportation so which one of these leads to hardship? If you experience all 4, it is hard to determine which one drives this.
This case held that the 6th amendment requires competent advice regarding the immigration consequences of convictions
Padilla v. Kentucky (2010)
Why is it important to compare the punishment of German citizens to EU citizens?
The concept of "post-national citizenship" refers to the idea that citizenship rights and identity extend beyond the nation-state, particularly within entities like the European Union (EU), where citizens of member states can live, work, and receive certain rights in other member countries.
In the context of comparing the punishment of German citizens to EU citizens within Germany, the idea is that if post-national citizenship truly existed in practice, there would be little to no difference in how German citizens and EU citizens are treated by the German legal system.
In other words, if the EU has genuinely created a post-national space where all EU citizens are equal regardless of the member state they come from, then the punishment or treatment of German citizens and EU citizens in Germany should be similar. Comparing these groups allows researchers to see whether EU citizenship actually functions as a post-national identity in practice or if, despite the rhetoric, national identity still heavily influences legal treatment.
Does deportation affect crime in receiving countries?
Yes. Recent evidence suggests individuals with greater geographic exposure to deportation flows have a higher likelihood of being victims of robberies and also experience lower perceived personal safety. Likely due to deportees being victims.
What is the relationship between citizenship and punishment within the U.S.?
Non-U.S. citizens receive harsher penalties and the effects are on par with or exceed traditional measures of stratification (e.g. race, ethnicity, gender).
This basically means that non-U.S. citizens face more severe legal penalties compared to U.S. citizens, and these harsher consequences are comparable to or even greater than the disparities typically seen due to race, ethnicity, or gender. In other words, immigration status itself becomes a significant factor of inequality within the justice system, similar to or surpassing other forms of social stratification.
Are foreign nationals entitled to the same rights?
It depends: 5th and 14th amendment due process and equal protection guarantees extend to all “persons”. The rights attached to criminal trials all apply to “the accused”. Both the 1st amendment's protections of political and religious freedoms and the 4th amendment’s protection of privacy and liberty apply to “the people”. Big difference in voting, holding office, and immigration
This is the number one federal criminal prosecution:
illegal entry, followed by illegal reentry (reentry: previously deported and you come back)
Did the refugee crisis in Germany affect crime?
Yes. Thus far, the evidence suggests that violent crime went up due to the influx of young male refugees (crime prone population)
What percent of immigrants have counsel in immigration court?
37 percent
Describe a direct effect of deportation
Individual feelings of isolation, guilt (cannot provide for family, used to be a breadwinner), and victimization (police and local gangs victimizing people)
Generally speaking, how are non-citizens in Germany punished?
Non Citizens receive more severe penalties than similarly situated German citizens.
How do we know the citizenship differences are not simply reflecting race or ethnicity?
Race/Ethnicity are controlled for, and even white non-citizens receive harsher penalties
If it’s only race then they should be treated the same, there are still citizenship gaps within the same races
This case held that imprisonment based on race/ethnicity is constitutional
Korematsu v United States (1944)
2/3 of these people were Japanese Citizens
Describe the ways immigration law has been infused with criminal law
The range of criminal offenses that can lead to the exclusion or deportation of non-U.S. citizens has expanded significantly.
Violations of immigration law are now criminal when they were previously civil, or carry greater criminal consequences than ever before (in the past they would catch people and deport them but not anymore)
Historically, immigration law intersected with criminal law only in denying entry to those with a criminal history.
Entering without authorization was not punished, and those who committed crimes after entering the country were deportable
Once immigrants had crossed the border, with or without government sanction, the federal government did little to expel them.
Recent changes in immigration law have focused on detaining and deporting those deemed likely to commit crimes that post a threat to national security (e.g. columbia student Khalil who was a permanent U.S resident that protested for Palestine)
Non U.S. citizens make up what proportion of the federal sentencing docket?
42 percent
Why might we expect noncitizens to receive harsher punishments?
Double punishment
Ex: Murder: Laken Riley Murder
Based on interviews, why do we see differential punishment for immigrants?
Resentment
Absconding (similar to what happened in Amsterdam when people do not have a permanent address)
Recidivism
Cultural practices
Does an INS or ICE hold affect your sentence ?
Yes, INS (The Immigration and Naturalization Service) holds served longer in prison than similar native-or-foreign-born inmates (Butcher and Peihl 200))
Roughly how many cases are backlogged in immigration court?
3.6 million
Immigrants convicted of a crime involving moral turpitude and were sentenced to more than 1 year receive this type of detention.
Mandatory detention
This nationality group is least likely to have counsel and most likely to be detained in immigration court
Mexicans
Chinese are the opposite of this
Roughly what percent of EU prisoners are foreign born?
22 percent (only 7% of the population)
Where and when does immigration affect hate crime?
During times of “triggering” events (refugee crisis) and in places with greater social disorganization
The “crimmigration” merger has taken place on three fronts, how do we see this?
the substance of immigration law and criminal law increasingly overlaps
immigration enforcement has come to resemble criminal law enforcement, and
the procedural aspects of prosecuting immigration violations have taken on many of the earmarks (features) of criminal procedure
We see this in several ways:
Non-citizens convicted of crimes can be subject to deportation
Police officers can be deputized to enforce immigration laws
Jails and prisons hold non-citizens until immigration law enforcement agents arrive to determine their immigration status.
why changes to immigration enforcement? (UNCP)
Unemployment was most consequential and closely correlated with criminal deportations during the four decades following World War II.
Not linked to crime rates
Not linked to any particular political party
The imprisonment rate explained a healthy proportion of the variation in criminal deportations post-1986.
Part of a broader “Culture of Control” where we used the tools of punishment to control marginalized populations.
Changes in Prosecution Policies: e.g. 1988 Anti-Drug Abuse Act increased maximum penalty for illegal reentry from 2 years to 15 years. (Maximum is now 20 years.)
Immigration cases makeup over _____ of all federal criminal cases
40%
How are noncitizens punished in U.S. federal courts?
Noncitizens are punished more harshly in federal courts
Noncitizens are more likely to be incarcerated and receive longer sentences than U.S. citizens, even when controlling for factors like offense type, criminal history, and education.
Charts show a consistent punishment gap across race, sex, and education—with noncitizens facing higher incarceration rates and longer average sentence lengths.
Legal status matters:
Undocumented (illegal) immigrants receive harsher punishments than legal noncitizens.
Sentence disparities are greater when legal status is explicitly considered—illegal immigrants are punished the most severely.
The joint effect graphs show that even Black and Hispanic individuals who are noncitizens face significantly higher incarceration rates than their citizen counterparts, suggesting that immigration status, not just race, is a key driver of punitive outcomes.
What helps explain these findings about how noncitizens are punished in U.S. federal courts?
Double Punishment (Sayad, Aas):
Non-citizens are punished not just for the crime but also for their outsider status.
Judges and institutions see crime by immigrants as an attack on the nation, prompting greater disapproval and harsher sentencing.
Judges have a lot of resentment and bias towards illegal immigrants
Crimmigration: The merging of criminal and immigration law means noncitizens face compounded consequences.
Example: An arrest may lead directly to deportation, denial of bail, or longer detention via ICE detainers.
How do judges view the punishment of noncitizens in U.S. federal courts?
U.S. Federal Court Judges: (8 total) “West Coast District” vs “East Coast District”
Interviews with federal judges from both coasts revealed that emotional resentment toward immigrant defendants—viewing them as betraying the country that accepted them—helps explain why noncitizens consistently receive harsher punishments. This suggests the punishment gap is driven not only by legal factors but also by judges’ perceptions and attitudes.
Judges Views that Explain the Punishment Gap
Resentment: The resentment view refers to a pattern of emotional and moral frustration that some federal judges express toward noncitizen defendants. Judges interviewed described feeling personally offended or betrayed by immigrants who commit crimes, viewing such acts as a violation of the trust and opportunity extended by the United States. They framed immigrant criminality as an insult to the “promised land” that took them in, with one judge explicitly asking, “Why are you screwing the country that has taken you in?” This sentiment often led judges to believe that immigrant offenders deserve harsher moral judgment than citizens who commit similar crimes. While judges claimed that this resentment may not formally affect sentencing decisions, many admitted that it can diminish the impact of mitigating factors—such as hardship or difficult life circumstances—that would typically lead to reduced sentences for citizen defendants. In effect, these attitudes help explain the persistent punishment gap between citizens and noncitizens in federal courts.
Absconding: This reflects a belief among judges that noncitizen defendants are more likely to flee or disappear—especially if they face deportation. The quoted judge suggests that because many immigrants have lived most of their lives in the U.S., sending them back to a country like Chile may not deter them from escaping custody ("they're in the wind"). This perception can lead judges to justify harsher punishment or longer detention as a way to prevent flight risk, even if it isn’t explicitly based on the crime itself.
Recidivism: The recidivism view reflects a belief among some judges that noncitizen defendants who lack marketable skills or job prospects are more likely to commit future crimes. In the quote, the judge implies that if a defendant cannot demonstrate a clear path to lawful employment, the court views them as having no legitimate way to reintegrate into society. As a result, the judge sees punishment—often incarceration—as the only viable response. This mindset reflects a preventative logic: the harsher sentence is not just for the crime committed, but also for the perceived risk of future criminal behavior based on the immigrant's economic vulnerability.
Cultural Practices: This quote shows a judge expressing the belief that Hispanic undocumented immigrants are more likely to commit domestic violence, and he blames it on their culture. By generalizing this behavior to an entire group, the judge views them as more dangerous because of their background. This kind of thinking can lead to harsher punishments, showing how both ethnicity and immigration status can influence sentencing.
Immigration Offenses: This quote shows that the judge automatically denies probation to people charged with illegal entry, even when the law says they qualify for it. The judge admits he has never even considered giving probation in these cases, without explaining why. This suggests a strong bias against undocumented immigrants, where their immigration status alone leads to harsher punishment, regardless of the crime or circumstances.
How are noncitizens punished in state and local courts?
Noncitizens in state and local courts are punished more severely than U.S. citizens at every stage of the criminal legal process. Studies like Beckett and Evans (2015) show that ICE detainers often result in extended jail time, even when case characteristics are otherwise similar. This occurs because noncitizens are more likely to be denied pretrial release, face higher bail, and be excluded from alternatives to incarceration like work release.
This means local courts not only punish for the crime but also act as a gateway to deportation. In both Texas and California, large-scale data show that noncitizens are more likely to be charged, convicted, incarcerated, and receive longer sentences than comparable citizens—even after controlling for the offense and other factors. The disparities are clear: in Texas, noncitizens are significantly more likely to be incarcerated and receive longer sentences; in California, the disparities still exist but are smaller.
Are disparities the same in different states when it comes to noncitizen punishment in state and local courts?
No, disparities in the punishment of noncitizens vary significantly across states, as shown by comparative data from Texas and California. According to Table 3 in the slides, noncitizens in Texas face much harsher treatment at every stage of the criminal process.
Specifically, noncitizens in Texas are:
More likely to be convicted (+0.45 probability),
Less likely to receive deferred adjudication (-0.80),
More likely to be incarcerated (+0.48), and
Receive longer sentences (+0.48 units in logged sentence length),
(all of which are statistically significant at p < .001.)
In contrast, California also shows disparities, but they are much smaller in magnitude. Non Citizens in California are:
Slightly more likely to be convicted (+0.03),
More likely to receive deferred adjudication (+0.11),
More likely to be incarcerated (+0.08), and
Given longer sentences (+0.12 in logged sentence length),
all of which are also statistically significant but far less severe than in Texas.
These differences reflect state-level legal and policy environments. Texas has implemented aggressive immigration enforcement strategies, including 26 active 287(g) programs, which allow local law enforcement to collaborate directly with ICE. Texas has also abolished sanctuary laws, making its criminal legal system tightly linked with immigration enforcement.
California, by contrast, has declared itself a “sanctuary state” and has no 287(g) programs, actively working to separate its criminal justice system from immigration enforcement. This more protective legal framework likely explains why the disparities for noncitizens in California, while still present, are substantially less severe than those observed in Texas. They have an alienage neutral model where they don’t look at legal status, but they’re gonna charge someone with the proper sentence/charge based on what they did.
Is citizenship a proxy for racial inequality?
NO
The slides make clear that while race and citizenship are closely related, they function as distinct dimensions of legal inequality. Some scholars argue that immigration enforcement and punishment are simply extensions of broader systems of racial control, often targeting Latinx, Black, and other nonwhite communities. However, the research presented—especially in the Texas and California case comparisons—demonstrates that citizenship status has an independent and measurable impact on case outcomes, even when race and ethnicity are statistically controlled.
In both states, the data show that noncitizens of all races—including white noncitizens—are punished more harshly than citizens of the same racial group. This undermines the idea that disparities in punishment are solely the result of racial bias and suggests that citizenship itself is a powerful marker of social and legal exclusion. The researchers emphasize that treating citizenship as a mere proxy for race oversimplifies the mechanisms of exclusion and punishment operating in the U.S. legal system.
Instead, the concept of “double punishment” (as theorized by Abdelmalek Sayad) offers a more accurate explanation: noncitizens are punished not only for the crime they commit, but also for their lack of national membership. Their “outsider” status becomes a factor that shapes how judges, prosecutors, and police perceive them—leading to greater disapproval, diminished access to leniency, and ultimately more severe penalties.
What does Stumpf (2013) mean when she says “the process is the punishment in
crimmigration law?”
Meaning: Noncitizens experience significant harm just by being involved in the legal process, even without a criminal conviction.
Reason: Criminal and immigration laws have merged, making the legal process itself (arrest, detention, deportation proceedings) a form of punishment.
Examples of Punitive Processes:
Detention Without Conviction: Noncitizens can be detained for long periods without trial.
Bail Denial: Immigration detainers can lead to judges denying bail.
Arrests for Deportation: Sometimes, noncitizens are arrested not to prosecute a crime but to initiate deportation.
Prolonged Pre-Trial Detention: In some cases, the time spent detained before trial exceeds the eventual sentence.
When Does the Process Become Punitive?
High Cost of Contesting Charges:
Costs (financial, time, stress) outweigh benefits of fighting charges, leading to plea deals.
Procedural Elements Mimicking Punishment:
Example: Pre-trial detention longer than the actual sentence.
Intentional Negative Experiences:
Authorities use detention or arrest as punishment, not just as legal steps.
Do ICE detainers affect how long people spend in prison?
Yes, ICE detainers do affect how long immigrants spend in prison or jail, often increasing the time they are held beyond what their criminal charges alone would justify.
ICE detainers can extend incarceration by delaying release or bail, even for minor offenses (putting on hold/flagging someone in the system to check their immigration status
From Butcher and Piehl (2000):
Their study examined data from the California Department of Corrections across three years—1986, 1990, and 1996—and found that inmates who had immigration holds (INS/ICE detainers) served longer prison sentences than similar inmates without holds. These “holds” are requests from immigration authorities asking state or local jails to detain an individual for up to 48 hours after their criminal sentence ends, so ICE can take custody and begin deportation proceedings. Importantly, this extended incarceration occurred even when inmates had similar criminal backgrounds and charges, suggesting that the presence of an ICE detainer alone leads to longer prison time. The study also found that this punishment gap has worsened over time, indicating a growing reliance on detention in immigration enforcement.
From Beckett and Evans (2015):
Looking at King County Jail in Washington in 2011, this study found that ICE detainers significantly lengthen jail time for noncitizens—even when controlling for the nature of the offense. The reasons include:
Judges often deny pretrial release for individuals with detainers, meaning they stay in jail while awaiting trial.
Higher bail amounts are often set for immigrants flagged for deportation, making it harder for them to post bail.
They are excluded from alternative sentencing options, such as work release programs, which would otherwise reduce incarceration time.
What are the trends in immigrant detention?
Trends in Immigrant Detention
Immigrant detention in the United States has expanded dramatically over the past few decades, becoming a central component of immigration enforcement.
There is also a shift toward privatized facilities and longer average lengths of stay
The graphs show a steep increase in the number of individuals held in immigration detention:
In the early 1990s, daily detainee populations were well under 10,000.
By the mid-2000s, that number had more than tripled.
By the late 2010s, detention levels peaked at over 50,000 people per day.
This growth reflects a shift toward mandatory detention policies and broader criminalization of immigration-related offenses.
what are the two main reasons for detention?
flight risk and public safety
What are the direct consequences of deportation?
Direct effects
Those that affect the deportee
The view that deportation simply returns noncitizens to their homeland may be problematic.
Deportees frequently experience removal as an exile from their home.
E.g. “I do not see myself as being from here” - Francisco
Often perceived as “outsiders,” foreigners, and criminals
In many instances, the stigma affects their ability to find work.
Former breadwinners then become reliant on remittances.
Experiences of victimization
E.g. If they want you to take your clothes off, you have to. If you don’t, they start kicking your ass right there. (Police)
E.g. They beat me up pretty bad...they told me if they see me again, then they were going to kill me. (Gangs)
What are the indirect consequences of deportation?
Indirect effects
Those that affect those close to the deportee (family, friends, etc.)
4.1 million U.S. citizen children under the age of 18 live with at least one undocumented parent
500,000 U.S. citizen children experienced the apprehension, detention, and deportation of at least one parent between 2011 and 2013
Deportation of a parent increases children’s risks of mental health problems like depression, anxiety, and severe psychological distress.
Associated with behavioral problems. Compared to the six months prior to an immigration arrest, children cried or were afraid more often; changed their eating or sleeping habits; and/or were more anxious, withdrawn, clingy, angry, or aggressive.
The Postville raid was associated with increased risk of low birthweight
Economic hardship
within six months of a parent’s immigration related arrest, detention, or deportation, families lost an average of 70% of their income
Estimated 5000 children in foster care as a result of deportation
What are the societal consequences of deportation?
Societal effects
Has deportation affected our society? Receiving societies?
Does deportation decrease crime in the U.S → Comprehensive analyses of the Secure Communities program by two independent teams of researchers revealed no impact of S-Comm on crime.
Chilling effects on civic participation (individuals are discouraged from engaging in civic activities (like protesting, voting, or speaking out) due to fear of negative consequences (such as legal repercussions, social backlash, or surveillance).
Does deportation affect crime in receiving countries?
Yes it might (increases robberies)
In a study of deportations to Mexico 1995-2014, individuals with greater geographic exposure to deportation flows have a higher likelihood of being victims of robberies and also experience lower perceived personal safety
Deportees themselves are most likely to be the victims, not perpetrators of crime.
At least 2 ways to explain this
Deportees Face Social and Economic Marginalization
Many deportees have spent most of their lives in the U.S. and may not have strong ties, support systems, or job prospects in their country of origin.
Upon return, they are often treated as outsiders, stigmatized as criminals, and struggle to find work, making them vulnerable to exploitation or victimization.
This economic and social instability increases their risk of being targeted by criminals, especially in areas with weak public safety systems.
Concentrated Deportations Disrupt Communities
When large numbers of deportees are returned to the same regions, it disrupts local communities and can strain local resources, including housing, employment, and policing.
This sudden influx may contribute to social disorganization and weaken informal community controls, making crime more likely in these areas.
Additionally, returning deportees—especially those deported after incarceration—may bring new criminal networks or behaviors into local environments, further increasing instability.
Who has access to legal counsel in immigration court?
1,206,633 removal cases
Nationally, only 37 percent of all immigrants secured legal representation in their removal cases.
Large differences by detention status and other factors
Are there differences by location for who has access to legal counsel in immigration court?
Those in small cities (< 50,000) face additional barriers
Fewer Immigration Attorneys – Small cities typically have fewer legal professionals with immigration expertise, which limits access to effective legal help.
Distance from Major Courts – Many small cities are far from immigration courts or urban centers where such services are concentrated, making it harder for individuals to get timely assistance.
Detention Conditions – Detainees in remote or rural detention centers may face isolation from legal support and advocates, increasing barriers to mounting a defense.
Are there differences by country of origin for who has access to legal counsel in immigration court?
Immigrants from certain countries are less likely to secure legal representation, often due to a combination of economic disadvantage, language barriers, lack of community support, and geographic location. For example, individuals from Mexico and Central American countries—such as Honduras, Guatemala, and El Salvador—face significantly lower rates of legal representation compared to immigrants from countries with stronger diaspora networks or more established support systems in the U.S. Country of origin shapes both access to legal support and the likelihood of success in immigration court
Are there differences by detention status for who has access to legal counsel in immigration court?
Detention Status
All immigrants: 37% received legal counsel
Detained: 14% received legal counsel
Nondetained: 66% received legal counsel
Does legal counsel affect outcomes?
YES: Legal counsel has a profound impact on immigration case outcomes, particularly in removal proceedings. Immigrants who are not detained and have legal representation win their cases 81% of the time, compared to only 2.5% of detained immigrants without representation. This stark contrast shows how essential legal support is for navigating the complex immigration system. Attorneys help immigrants understand their rights, prepare necessary documents, access legal relief, and present a coherent defense in court—tasks that are nearly impossible for individuals to handle alone, especially from within detention centers. The data clearly demonstrate that having an attorney is one of the strongest predictors of a favorable outcome in immigration court, and the lack of access to counsel—particularly in detention or in small cities—creates a profound disadvantage that often leads to deportation regardless of legal merit.
What is the asylum system and why it has been compared to Roulette.
Huge disparities on asylum granting both within and across regional offices and the courts. Assigned randomly so the caseload for each person has roughly the same balance of caseloads. People are not being granted the same rates of asylum. It seems to matter who happens to handle your case. It is said to involve individual effects because the outcome of a case often depends more on the individual judge or location
More in depth: The U.S. asylum system has been compared to a game of roulette because outcomes are often inconsistent, unpredictable, and heavily influenced by factors unrelated to the merits of a case. This comparison reflects how chance—rather than legal fairness or consistency—often determines whether an asylum seeker receives protection or is deported. A major reason for this is the significant variation in approval rates between immigration judges and courts. Some judges grant asylum in 80–90% of cases, while others in the same city approve fewer than 10%, even when applicants come from the same countries and present similar claims. This means that the outcome can depend more on which judge hears the case than on the legal strength of the case itself. Several factors contribute to this roulette-like system. There is a lack of uniform standards, with judges exercising broad discretion in evaluating credibility and evidence. Courts are severely backlogged, with over 2 million pending cases, often forcing judges to make rushed decisions. Access to legal representation also varies dramatically, with unrepresented asylum seekers—especially those in detention or small cities—facing steep disadvantages. Shifting political climates further shape enforcement and interpretation of asylum law across administrations. Finally, judges bring their own biases and subjectivities to the bench, which can influence outcomes based on their perceptions of certain nationalities or asylum claims.
How do you measure disparity: did an adjudicator render a decision favorable to the asylum applicant at a rate that was either more than 50% higher or more than 50% lower than the rate of such decisions by adjudicators from the same office?
Why compare to others in the same office?
It’s a useful comparison → those in the same office are likely to see the same types of cases (immigrants in milwaukee v chicago v LA)
What do you do to combat this issue of roulette?
Remove the immigration court and the Board of Immigration Appeals from the DOJ and to place these bodies in an independent agency
Why?
Alexander Hamilton ([1788] 2003: 465) wrote in the Federalist Papers in reference to the importance of avoiding judicial elections, “nothing can contribute so much to [the judiciary’s] firmness and independence as permanency in office
Are foreign nationals entitled to the same rights? Why or why not?
Foreign nationals are protected by many core constitutional rights, particularly those related to due process and fair treatment under the law. However, citizenship still defines the full scope of legal and political rights in the U.S., meaning foreign nationals—especially undocumented ones—experience limited access to certain civil and political protections
Why they are entitled to many rights:
Under the U.S. Constitution, several key rights apply to "persons" rather than just "citizens." This includes:
Due process rights under the Fifth and Fourteenth Amendments, which guarantee fair legal procedures before life, liberty, or property can be taken away.
Equal protection under the law (Fourteenth Amendment), particularly in state-level cases.
Fourth Amendment protections against unreasonable searches and seizures.
Sixth Amendment rights, such as the right to a public trial, legal counsel, and to confront witnesses, all apply in criminal cases.
The right to file habeas corpus petitions, challenging unlawful detention, also applies to noncitizens—even those in immigration custody.
Why they are not entitled to all rights:
Voting rights, which are restricted to citizens.
Jury service, running for public office, and eligibility for certain public benefits (like federal financial aid or some welfare programs).
Immigration-specific procedures: The immigration system is considered civil, not criminal, so many procedural protections (like public defenders) do not automatically apply in deportation proceedings.
The government has broader authority to detain, deport, or deny entry to noncitizens under immigration law.
Do legal rights matter during national emergencies? Be able to give examples from Supreme Court cases.
Yes, but inconsistently. Legal rights during national emergencies are deeply contested and inconsistently protected. Legal rights do matter during national emergencies, but their application is often limited or suspended. The executive branch frequently exercises broad powers, and courts may be reluctant or unable to restrain such actions during the crisis itself. Rights tend to be restored or reevaluated after the emergency has passed.
Example 1: Ex Parte Milligan (1861)
During the Civil War, Lincoln suspended the writ of habeas corpus. Chief Justice Roger Taney rules such actions are unconstitutional because only Congress has the authority to suspend the writ. Lincoln ignores the ruling and so does the Army; arrests of civilians continue (dissidents, newspaper editors) The general is ordered arrested, and the marshal is denied access to the fort. Lambdin Milligan, a confederate sympathizer, is seized and tried by military commission in Indiana 1864. Files for a writ of habeas corpus. In 1866, after the Civil War had ended, the SC unanimously ruled for his release. The President cannot suspend habeas corpus in places where states have not attempted to secede and where civilian courts are operating
Example 2: Ex: Parte Merryman (1861)
During the civil war, Lincoln suspends the writ of habeas corpus
Chief Justice Roger Taney rules such actions are unconstitutional because only Congress has the authority to suspend the writ
What happened?
Lincoln ignored the ruling and so does the Army; arrests of civilians continue (dissidents, newspaper editors)
The general is ordered and arrested, and the marshal is denied access to the fort
Is “crimmigration” unique to the U.S.? How do we know?
Crimmigration, the merging of criminal and immigration law, is not unique to the United States, but a growing global phenomenon evident in countries across Europe.
In the European Union, noncitizens make up 22% of the prison population despite only comprising 7% of the general public
Austria and Switzerland reporting foreign national incarceration rates as high as 70%.
In Germany, statistical analyses show that non-German citizens receive longer sentences than citizens for similar offenses, and judges often view immigrant crime as a betrayal of national hospitality, justifying what sociologist Abdelmalek Sayad calls “double punishment.”
In the Netherlands, courts are less likely to offer alternatives to incarceration—such as community service or suspended sentences—to noncitizens, citing both practical concerns (like lack of a fixed address) and perceptions that foreign offenders are less rehabilitative.
In the United Kingdom, the 2007 UK Borders Act mandates deportation for non-EU nationals sentenced to 12 months or more, explicitly tying criminal punishment to immigration enforcement.
How are noncitizens treated in German courts?
In German courts, noncitizens are often subjected to harsher treatment than German citizens, a pattern shaped not only by legal criteria but also by emotional and social judgments. Statistical data from Germany’s Strafverfolgungsstatistik (2009–2010) show that non-German defendants receive longer prison sentences than comparable German citizens, even when controlling for the type of offense and prior record.
Why?
Resentment
In German courts, judges often frame immigrant crime as more than a legal offense—it is seen as a violation of moral and social expectations. This resentment is rooted in the belief that noncitizens are guests in the country who benefit from Germany’s protections and resources but fail to reciprocate. When immigrants commit crimes, judges interpret it as an abuse of the country’s hospitality, expressing anger and disappointment that these individuals have betrayed the trust extended to them. This sentiment—that noncitizens take advantage of the system without contributing to it—serves as a moral rationale for imposing harsher punishments, reinforcing the idea that those who do not "belong" must be held to a stricter standard of conduct. Such reasoning reveals how emotional judgments and social expectations influence legal outcomes, contributing to a broader pattern of double punishment for noncitizens
Social Marginalization
Noncitizens are less likely to receive suspended prison sentences (a form of leniency) because they are seen as less rooted in German society. The judge suggests that, since many foreign defendants lack a permanent home, stable job, or strong social ties in Germany, the court sees them as less trustworthy or less likely to comply with conditions of probation or rehabilitation. As a result, judges are more inclined to sentence them to actual prison time rather than alternatives like suspended sentences, which are more often given to people seen as integrated, stable, and capable of reintegration.
Absconding
Non-citizens are less likely to receive suspended sentences because they are seen as having a higher risk of fleeing the country. If a person has legal status or can establish their identity in another country, the court assumes they could leave Germany and avoid serving their sentence, making them less reliable candidates for probation or supervised release. The judge also justifies this unequal treatment by saying they can't punish German citizens more harshly just to appear fair—so instead, noncitizens are given tougher penalties based on their perceived ability to “disappear.”
Recidivism
View that German citizens are more likely to succeed in rehabilitation programs than noncitizens. The judge views Germans as easier to manage and more capable of reintegration, especially through programs like job training or occupational therapy. The implication is that German offenders have better social support, language skills, and long-term ties to the country, which makes them more “promising” candidates for alternatives to incarceration, such as probation, therapy, or job placement. By contrast, noncitizens are implicitly seen as less stable, less integrated, and harder to rehabilitate, which justifies denying them access to those same programs.
Cultural Practices
View held by the judge about noncitizens’ ability—or willingness—to participate in rehabilitation programs in Germany. The judge suggests that foreign offenders struggle to adapt to structured environments, such as rehabilitation or correctional facilities, because they are unwilling to follow strict rules like abstaining from drugs, tobacco, and alcohol, or adhering to a routine of full-time labor and discipline. The underlying implication is that foreigners lack the discipline, motivation, or cultural readiness to benefit from rehabilitation, making them less suitable candidates for alternatives to incarceration.
How are noncitizens treated in Dutch courts?
In Dutch courts, noncitizens are often treated more harshly than citizens, not necessarily because of the severity of their crimes, but because of how judges and prosecutors perceive their social status, integration, and legal standing.
Pretrial detention is more commonly used for noncitizens to prevent flight, which contributes to sentencing disparities.
Why?
Annoyance
Prosecutors and judges express the view that when migrants—such as Romanian nationals—enter the Netherlands and quickly commit crimes, especially in groups, they are perceived as more dangerous or opportunistic than local offenders. The prosecutor explicitly states that group shoplifting by foreigners is treated more severely than the same offense committed by a local individual because it suggests intentional travel for criminal purposes—a kind of premeditated abuse of national boundaries. Judges echo this sentiment, saying that if someone has only been in the country a short time, has a criminal record, and can't explain their legal status or purpose in the Netherlands, they are more likely to receive a prison sentence. Even if the offense is relatively minor, judges view this behavior as more offensive and socially disruptive, framing such defendants as outsiders who exploit the system. Short-term migrants, especially from marginalized EU countries like Romania, are not only judged for the crime itself but also for who they are, how recently they arrived, and how integrated they seem.
Logistics
Dutch prosecutors and judges avoid imposing alternatives to prison—like fines or community service—on noncitizens who lack a permanent address, stable contact information, or legal residence in the Netherlands. If someone has just arrived in the country, has no money, or lives abroad, the court assumes it will be too difficult to supervise them, enforce their sentence, or follow up on noncompliance. As a result, noncitizens, especially those who are undocumented or recently arrived are more likely to receive prison sentences, not necessarily because their crimes are more serious, but because the court lacks the logistical means to apply more flexible or rehabilitative sanctions.
Changing Goals of Punishment
In Dutch courts, the goals of punishment shift depending on the offender’s connection to the country, particularly their residency status. For Dutch citizens or long-term residents, judges often emphasize resocialization—the idea that punishment should support reintegration into society. However, when the offender is a noncitizen, especially someone who is seen as coming to the Netherlands solely to commit a crime or who is expected to leave the country afterward, judges shift toward retribution and deterrence. They are less inclined to issue fully suspended sentences to these individuals, fearing they will not remain under supervision or may return to commit future offenses. Instead, they issue partially suspended sentences combined with unconditional prison time, aiming not only to punish but also to discourage return migration. This demonstrates how foreign offenders are often viewed not as potential members of Dutch society, but as outsiders, for whom the justice system prioritizes exclusion and control over rehabilitation.
Did the recent influx of refugees affect crime in Germany? (more indepth)
Did refugees increase crime in Germany?
Overall, the evidence is mixed and specific to crime type. Earlier studies (1996–2006) showed a general link between immigration and higher crime rates, but more recent research on the refugee crisis shows a more limited impact.
Refugees did not take jobs from native workers but have struggled economically, which contributed to small increases in minor offenses like fare-dodging and drug-related crimes (Gehrsitz & Ungerer 2017).
One study (Pfeiffer et al. 2017) found a 10% rise in violent crime between 2015–2016, with young male refugees accounting for a large share (about 90%) of that increase. However, these crimes were often concentrated in refugee centers, and not necessarily directed at German citizens.
Were Germans more at risk?
Despite the rise in certain offenses, German citizens were not more likely to be victimized by refugees (Huang & Kvasnicka 2019). This means that while some crimes increased, they did not translate into widespread harm against the native population.
Refugee Crisis and Right-Wing Hate Crimes
The slides also emphasize that the influx of refugees may have triggered an increase in hate crimes, particularly in areas with:
High cultural hostility,
Low economic prosperity, and
Weak social cohesion.
This suggests that the perception of refugees as a threat, rather than their actual criminal behavior, may fuel right-wing violence and xenophobic attacks—making immigration a symbolic target for broader social tensions.
Summary: The refugee crisis led to some increases in specific low-level crimes and violent incidents largely attributable to a small subset of young male refugees. However, there is no strong evidence that refugees increased crime against Germans, and much of the public fear may have been disproportionate to the actual threat. Moreover, the arrival of refugees appears to have fueled hate crimes, not because of what migrants did, but because of how they were perceived, especially in already tense or economically struggling regions
What is the significance of Padilla v. Kentucky (2010)
Background:
Petitioner was a lawful permanent resident facing deportation after conviction for transporting a large amount of marijuana
Petitioner alleged that his counsel not only failed to advice him, but also told him he wouldn’t have to worry about immigration consequences because he had been in the U.S. for so long
Petitioner relied on the misadvice
Kentucky Supreme Court: Sixth Amendment does not protect a criminal defendant from erroneous advice on a “collateral” consequence of conviction
U.S. Supreme Court: deportation is an “integral part” of the penalty that may be imposed to a non-citizen; in Mr. Padilla’s case the representation fell below the objective standard of reasonableness under Strickland’s first prong
Key Points
Deportation is a “particularly severe penalty” that is “intimately related” to the criminal process and therefore advice regarding deportation is not removed from the ambit of the Sixth Amendment right to effective assistance of counsel
This basically means: This means that because deportation is a very harsh consequence and closely connected to the criminal justice process, a defense attorney must provide accurate legal advice about the risk of deportation when representing a non-citizen. Failing to do so can violate the Sixth Amendment, which guarantees the right to effective assistance of counsel.
Professional standards for defense lawyers provide the guiding principles for what is effective assistance
The Sixth Amendment requires affirmative, competent advice regarding immigration consequences; non-advice is insufficient
The Court endorsed “informed consideration” of deportation consequences by both the defense and the prosecution during plea bargaining
Significance:
It expanded the constitutional duty of defense attorneys under the Sixth Amendment. The Supreme Court ruled that: Defense attorneys must inform non-citizen clients about the risk of deportation resulting from a guilty plea.
Deportation as a serious consequence: The Court recognized deportation as a “particularly severe penalty” that is often more devastating than jail time for non-citizens.
Linking immigration and criminal law: It affirmed that immigration consequences are not “collateral” but are intimately tied to the criminal process
Effective assistance of counsel: Failing to advise a client about deportation risks can now be grounds for claiming ineffective assistance of counsel, which can overturn a conviction or plea deal.
This matters because this case marked a shift in how courts treat the intersection of criminal and immigration law, emphasizing that immigrants must be fully informed before making decisions that could lead to permanent removal from the U.S.
Examples for detention
Examples for detention:
committed a crime, or multiple crimes
arrived at the border without a visa prior to formally applying for asylum or refugee status
an outstanding removal (deportation) order on record, either pending or past due, or missed prior immigration hearing dates.
Mandatory Detention
Inadmissibility
Inadmissibility refers to legal reasons that prevent a noncitizen from entering or reentering the United States or from obtaining lawful immigration status (such as a visa or green card). Certain criminal and security-related offenses automatically make someone inadmissible. These include:
Crimes involving moral turpitude (CIMT) – These are offenses that involve dishonesty, fraud, or actions that violate accepted moral standards (e.g., theft, assault, fraud). A person is generally inadmissible if they:
Were convicted of a CIMT, unless the crime carries a maximum possible sentence of one year or less and the actual sentence was less than six months,
Or if they were under 18 years old at the time of the offense and the offense occurred more than five years ago.
multiple convictions where the combined sentences are five years or more of imprisonment
a controlled substance offense (any drug offense, including if the immigration authorities have reason to believe that you are a drug trafficker)
a prostitution-related offense
terrorist activity
significant human trafficking, and
money laundering
Deportability (based on criminal conviction)
a crime involving moral turpitude where you were sentenced to more than one year in prison
two or more crimes involving moral turpitude
an aggravated felony
a firearms offense
a controlled substance conviction other than a single offense for possession for your own use of 30 grams or less of marijuana
drug abuse or addiction, or
espionage,sabotage, or treason
Cole on why rights matter during national emergencies:
Why focus on national emergencies?
It is in times of crisis that constitutional rights and liberties are most needed, because the temptation to sacrifice them in the name of national security will be most acute.
Judicial protection is also critical because emergency measures are typically targeted at the most vulnerable among us (especially noncitizens), who have little or no voice in the political process.
The Traditional View
Judicial review has largely failed to protect individual rights when their protection is most needed
Schenck v United States (1919) - court authorizes criminalization of speech during WWi
Korematsu v United States (1944) - detention based on race during WWII
Dennis v United States (1951) - guilt by association during the Cold War
A Revisionist View
The traditional view is too pessimistic. Considered over time, judicial review of national security measures can and has established important constraints on emergency powers that restrict the scope of what is acceptable in future emergencies.
Courts can make decisions after the emergency has passed, and have often reversed earlier decisions that limit Executive action in the future
Ex Parte Milligan (Civil War)
Duncan v Kohanamoku (WWII)
Five Reasons why Judicial Review can be effective:
Since emergency powers tend to outlast the emergency, those powers can be reviewed after the worst of the crisis is over
Legal decisions must provide a statement of reasons that binds future cases, thus exerting control over the next emergency
common law evolves through judicial decisions made in specific cases, allowing legal rules to adapt and improve based on experiences from past situations, particularly when earlier responses to emergencies were overly reactive or excessive
The formalities of the judicial process mandate an official record that can facilitate reaching a just result
Federal courts are independent of the political process and a core part of their institutional identity is independence in interpreting constitutional rights
The Supreme Court Decisions Since 9/11
Rasul v. Bush (2004):
Issue: Do federal courts have jurisdiction over habeas corpus claims by foreign nationals detained at Guantanamo Bay?
Ruling: 6-3 decision - Federal courts do not have jurisdiction, citing the Authorization for Use of Military Force (AUMF), which grants the president broad powers against those involved in the 9/11 attacks.
Hamdi v. Rumsfeld (2004):
Issue: Can the government classify U.S. citizens as "enemy combatants" and detain them indefinitely without charge?
Ruling: 5-4 decision - The president has the authority to designate U.S. citizens as enemy combatants (based on AUMF), but the detainee still has the right to legal representation and to challenge their detention before a neutral tribunal.
Key Point: The Court stated that war is not a blank check for depriving citizens of constitutional rights.
What are the three approaches to case processing in different jurisdictions?
1.Alien-Neutral Model (Los Angeles, CA)
In this model, criminal justice officials make a conscious effort to ensure that a person's immigration status does not influence decisions in criminal cases. The goal is to treat all defendants equally, regardless of whether they are U.S. citizens or not.
2. Illegal-Alien-Punishment Model (Harris County, TX)
In this model, non-U.S. citizens who are in the country illegally receive harsher treatment in the criminal justice system compared to other defendants. This includes being less likely to get bail, facing tougher plea deals, and receiving more severe sentences.
3. Immigration-Enforcement Model (Maricopa County, AZ)
This model actively integrates immigration enforcement into the criminal justice process. Local law enforcement is tasked with identifying immigration violations as part of their regular duties, starting from the point of arrest.
Note 
Flashcards (70)