David Sklansky, Crime, Immigration and Ad Hoc Instrumentalism, 15 New Crim. L. Rev. 157 (2012).
The lines between criminal law enforcement and immigration enforcement have blurred to the point where they are at times indistinguishable, but effective efforts to theorize this merger through the lens of criminal law are relatively few and far between. For this reason, I particularly enjoyed reading David Sklansky’s Crime, Immigration and Ad Hoc Instrumentalism. In this article, Sklansky not only provides a nice descriptive account of the developments that are the causes and harbingers of the criminal/immigration merger, but he also helpfully situates these developments within a broader law enforcement framework. In so doing, he persuasively illustrates how these developments are part of a general legal trend toward “ad hoc instrumentalism.” At the same time, he also uses the article to explain reasons that these developments might be particularly problematic in the context of what has sometimes been called “crimmigration” law.
Professor Sklansky begins with a descriptive account of “the various ways in which criminal justice and immigration enforcement have grown increasingly intertwined.” Focusing on the period from the mid-1980s through the present, Sklansky discusses four different developments. First, immigration crimes went from being a relatively insignificant percentage of the federal criminal docket to accounting for a majority of all federal prosecutions. Second, deportation – which, as Dan Kanstroom has observed, was once a small-scale, post-entry form of border control – is now widely understood and used as a key tool of crime control. Third, immigration authorities run the nation’s largest prison system – a system that is supposedly a civil detention system but that the present administration admits falls well outside the bounds of “truly civil” detention. Finally, after decades in which sub-federal agents were viewed as peripheral to immigration enforcement efforts, state and local law enforcement officers now cooperate on a widespread and systematic basis with federal immigration officials in immigration enforcement. Although all of these trends have been described elsewhere, Sklansky’s article provides a good overview of the existing literature. He also makes headway into the important task – also recently taken up to great effect by Ingrid Eagly – of providing a textured sense of how the systems of criminal law enforcement and immigration law enforcement are interacting as a practical matter.
In Part II of the article, Sklansky introduces his concept of “ad hoc instrumentalism.” He defines the concept as thinking about “legal rules and legal procedures simply as a set of interchangeable tools. In any given situation, faced with any given problem, officials are encouraged to use whichever tools are most effective against the person or persons causing the problem.” Sklansky argues that this is a developing trend in law and legal institutions that is not limited to the criminal/immigration merger, but that does help to explain an important aspect of that merger. In the paper, he points to national security and parole as two areas characterized by ad hoc instrumentalism. Sklansky notes that ad hoc instrumentalist policies can be efficient and pragmatic, but that they also have weaknesses.
Part III of Sklansky’s article focuses on these weaknesses and elaborates on the particular problems that emerge in the context of the criminal/immigration merger. In particular, he cites concerns that ad hoc instrumentalist approaches weaken the rule of law and create accountability problems. And while he concludes that rule of law concerns generated by such policies ultimately are somewhat amorphous, accountability concerns provide a powerful critique of ad hoc instrumentalism – both in general and in the context of the criminal/immigration merger in particular.
Sklansky depicts in some detail the ways in which enforcement policies developed around criminal/immigration enforcement generate serious accountability problems, obfuscating the origins of rights violations and obscuring the sources of potential remedies. In his view, the general accountability concerns created by ad hoc instrumentalism are exacerbated in the context of the criminal/immigration merger “by two other features of our newly merged system of immigration enforcement and criminal justice: its bureaucratic opacity and its selective application.”
Sklansky’s theoretical framework contributes to a better understanding of the dynamic at work in the merger of immigration and criminal law. His efforts to explore the parallels to the parole system, for example, provide a very useful way to refine existing thinking about the problems and concerns raised by this merger. And by pointing out what makes the criminal/immigration merger different – and perhaps more problematic – than other domains of ad hoc instrumentalism, he also contributes in important ways to the existing literature concerning “crimmigration.”
In attempting to diagnose just what is wrong with the criminal/immigration merger, Sklansky gets at issues that have been a constant source of struggle in my own work. Why is this a problem? Why does it bother me? Is the system unjust? For example, in my articles Whose Community Shield? and Managing Migration Through Crime, I attempt to give some explanation of what is troubling about current trends. I focus largely on rule of law concerns. But I freely admit that I had persistent difficulty articulating theoretical objections that adequately captured my concerns. David Sklansky offers a coherent and plausible theory of the problem, and in so doing enhances the ongoing debate around these issues.
Ultimately, I am not sure that I have as much faith as Professor Sklansky in the power of greater transparency to alleviate the harms that he has diagnosed — both because there is a significant democracy deficit in the formulation of immigration policy (given the non-voting status of the population upon which immigration law is imposed), and because I am perhaps far more pessimistic than the author “that making matters more accountable could wind up making them uglier” given the pervasive, and often racist, anti-immigrant sentiment evident in popular discourse. That said, I deeply appreciate his efforts to put his finger on what is going wrong here and how we might hope to see it made right.