Yearly Archives: 2016

Crimmigration Law Comes of Age

Mar 4, 2016 SpearIt1 comment

For criminal justice enthusiasts, Padilla v. Kentucky (2010) represented a victory for criminal defendants in an area where there are few. Whereas previously, defense attorneys were under no compulsion to inform clients about the downstream consequences of a conviction, Padilla said that deportation was different. The severity of this outcome mandated that clients be made aware of this possibility before making a guilty plea—it simultaneously served as a mandate for the defense bar. As a result of the ruling, defense attorneys were involuntarily thrust into the world of crimmigration law, with the beneficiaries being those accused of a crime. Now, at a minimum, defense counsel would need the competence to be able to advise clients who face the risk of deportation.

In Crimmigration Law, César Cuauhtémoc García Hernández has created an immense resource to help ensure this occurs. The work provides a comprehensive overview of a complex phenomenon in American law, namely, how criminal and immigration law converge into a distinct body of law that necessarily involves both.

The book is a “must-read” for practicing attorneys and legal scholars working in this area. It is written with rigor from a fluid pen that is accessible both to undergraduate and graduate students alike. Although scholarship focused on crimmigration law is still in a fledgling state, this book represents a new centerpiece in the discussion that raises the scholarly stakes.

On a personal level, the work might best be understood as embodying the persona of García Hernández himself, whose life is divided between practice and the professoriate. As an immigration lawyer with a practice in Texas, he is entrenched in the practical issues facing migrants and is the author of numerous practical resources for attorneys. At the same time, he is a luminary among scholars working in the area and founder of a nationally recognized blog, crimmigration.com. This book reflects one who straddles two worlds at once, which is united by the desire to achieve greater justice.

The anatomy of the text consists of three topical sections, each of which contains several chapters. The first part, “Criminals in the Immigration Law System” examines various issues in law and practice that have blurred the lines between crime and immigration, paying close attention to laws that subject criminals to immigration law. Next, “Migrants in the Criminal Justice System,” looks in reverse by considering issues that arise when non-citizens violate the criminal law. Together, these sections demonstrate the dialectic between immigration and criminal law; they are not starkly divided spheres, but converging bodies that are sometimes inextricable. The final part, “Enforcing Crimmigration Law” builds from the previous sections by outlining the enforcement aspects of Crimmigration law, including border policing and civil detention. This concluding section caps the study by detailing how even the enforcement apparatus represents a melding of mechanisms found in both civil and criminal law.

The work demonstrates that sometimes, criminal law practice and immigration law practice sit in a symbiotic relationship. Indeed, the immigration system at times mirrors the criminal justice system; simultaneously, what happens in criminal proceedings is critical for determining a migrant’s legal status, including whether one can be deported from the country. This is particularly the case for defense attorneys at the pre-trial phase since, as Padilla presumes, knowledge that a conviction will lead to deportation might very well impel a defendant to go to trial rather than plead guilty.

The book’s navigation through these and other complex doctrinal issues makes for a solid introduction to the fundamentals of crimmigration law. The writing is laced throughout with helpful practice problems that allow readers to test their substantive understanding of the issues in real time before delving deeper into the text. Each chapter is also designed with additional sources for further reading. As such, the book represents an excellent pedagogical resource for law school courses and clinics in criminal or immigration law.

Taken wholly, this book is valuable and has many laudable achievements, not the least of which is its didactic approach. As such, it represents a tool for lawyers to become better lawyers for their clients, and to achieve better outcomes for the most socially outcast members of society—criminals and immigrants. Unsurprisingly, these out-groups are often the ones with the greatest need for zealous legal representation, yet they often must settle for far less in a system that is stacked against them. This work is designed to help lawyers devise better strategies, achieve better outcomes, and hopefully achieve greater justice for their clients.

Abolition Calling

Feb 5, 2016 Jonathan SimonAdd a Comment

Two recent articles by Professor Allegra M. McLeod, her 2013 essay, Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives, and her 2015 article, Prison Abolition and Grounded Justice, represent the most significant attention to the idea of prison abolition inside the legal academy for at least generation. The first builds toward the second, a powerful and broad gauge intervention in the current exciting moment of reform in criminal law and justice. Together they constitute some the most exciting new work on criminal justice I have read in sometime.

We stand at what increasingly seems like the most promising change point in decades in the criminal justice era. Academics, long out of the action find themselves facing two risks. If we too exuberantly carry forward the radical critique of criminal justice, at a time when the system seeks legitimacy from researchers, we may miss the opportunity to help build a more “evidence based” system and even contribute to an eventual public backlash in favor of a return to “get tough” punitive policies. The other risk is that we accept premature closure of the era of mass incarceration, embracing too many of presumptions about crime, high incarceration neighborhoods, and law enforcement competence that built and sustained the era of mass incarceration.   Professor McLeod’s essay and article are, along with the recent book Captured by Professor Marie Gottschalk of the University of Pennsylvania, Department of Political Science, the strongest efforts yet to push attention to the latter risk, of defining mass incarceration “down” in ways that will allow it to reshape and reformulate itself (perhaps into a system of mass probation or mass jailing).

The essay and the UCLA article together take on three distinct moves necessary to bring Abolition theory into the criminal law debate (and one of her premises is that just bringing it into the debate can help reshape the horizons of the possible for more realist reformers).

The first section opens with a potent reminder of how violent and dehumanizing our massive criminal justice system is (even without considering executions which are largely unmentioned here). It is not just the degrading carceral state but also the “punitive policing” that keeps it inflated. As shown by the sociologists of the 1950s and 1960s, prisons even before the era of mass incarceration were associated with degrading and damaging treatment, which could not help but build resentment and perverse adaptation in prisoners. The supersizing of prison populations, the normalization of chronic hyper overcrowding, and the accumulation of a disease burdened prison population has made the level of degradation and damage far deeper.  The taint of racial discrimination, which has come recently to be strongly associated with mass incarceration thanks in part to Michelle Alexander’s New Jim Crow, is on McLeod’s account far deeper than our war on drugs. The idea, forged in the Jim Crow era, that incarceration could be a political technology for reproducing status inequality pervades the system regardless of which crimes we focus on.

For many, abolition is rejected from the start on the premise that we need some way of dealing with the most dangerous people convicted of the most serious crimes. McLeod notes that abolition need not (and probably could not) mean an immediate end to all carceral institutions. What she favors appears to be a relentless critical scrutiny on existing forms of incarceration in the goal of displacing as much of it as possible as quickly as possible. Yet even this kind of aspirational abolitionism draws an almost instant rebuke (which I actually got from a colleague I discussed this work with, and who should know better), “what are you going to do with Manson?” This focus on what McLeod and other abolitionists call the “dangerous few” allows the maintenance of the above problems to seem normal and in fact indispensable, unless the objector can prove they have a way to prevent harm from a population that is a tiny fragment of the carceral population and who are themselves subject to life course reductions in criminal risk (even Charlie Manson won’t be killing anyone in his 90s).

The second and perhaps most important productive task of McLeod’s abolition intervention is to highlight the danger of accepting the reforms that seem significant when abolition is off the table, including greater use of probation, greater efforts to combine law enforcement with social services, and more sophisticated use of police in space and time to interrupt crime “hot spots.” Each of these positions are advocated by some of the best criminologists of our time whose books I regularly give to my students interested in dismantling mass incarceration (Mark Kleiman, David Kennedy, Frank Zimring), but I share McLeod’s critique of these as building in a dominance of law enforcement competence and the dangerousness of the criminalized community that locks us into far too shallow a reform trajectory.

The third challenge, one which I find compelling even if its resolution in this piece is only a down payment on more work to come, is that we must begin to address forms of regulation and governance outside of criminal law and justice if we are to truly reduce mass incarceration. McLeod reminds us that criminal law is not premised simply on the moral urgency of holding wrongdoers accountable (notwithstanding the belief of many legal philosophers), but on the often unacknowledged premise that it is a necessary tool of governance in a highly unequal and violent society. Professor McLeod argues that those of use operating in the criminal justice reform space have to actively consider forms of governance that can regulate many of the social problems not cast into the frame of crime and punishment as social control. This section is more of a starter kit of examples than a fully framed theory of regulating the poor beyond crime. It ranges from the technocratic interventions like situational crime prevention and urban design, to the radical communitarian idea of creating “safe harbors” where those threatened by violence of all sorts can achieve safety without police or punishment.

Am I an abolitionist? Even before reading Professor McLeod’s recent article I have found myself struggling with that issue. Abolition as an end point and as a goal is perfectly appropriate. The bridge to abolition is, fealty to the ideal put so well by Justice Kennedy in Brown v. Plata, that while prisoners lose their liberty, they do not lose their “essential human dignity.” Punishments, whether the take they form of incarceration, supervision in the community (which as McLeod argues is also quite punitive), or fines and fees (which can reduce people in poverty to the virtual status of slaves) must always respect that human dignity. As the recent Report of the National Research Council, The Growth of Incarceration in the United States (2014 Chapter 12) emphasized, just punishments should reflect proportionality between crime and punishment, the principle of no more punishment than necessary (or parsimony), regard for the person’s social citizenship or belonging to the community, even while being punished, and concern for social justice. Our current sentencing system and our prisons and jails are badly failing on all of those accounts. To get there, which is their constitutional obligation under the 8^th Amendment, our carceral institutions will have to be reinvented, their populations, down-scaled enormously, and their basic model of coercion and control revisited.

What Big Data Means for the Fourth Amendment

Jan 6, 2016 Elizabeth JohAdd a Comment

Hear the term “big data,” and the police are not likely to be the first word that comes to mind. Whether or not you are familiar with the term, the vast quantities of digitized information available today—and the data analytics that are applied to it—already shape your world. The movie recommended to you by Netflix, the date you chose on OkCupid, or the ad you saw on your Facebook feed are all the result of the pervasiveness of big data. That same big data revolution is coming to policing. The NYPD operates a “domain awareness system” that links license plate reader data, “smart” cameras, law enforcement databases, texts of 911 calls, and radiation sensors information from around the city. Police departments in Seattle and Los Angeles are piloting predictive policing software that directs officers to places where crime is most likely to happen in the future. Other law enforcement agencies are considering the adoption of social media software that sifts through tweets, likes, pins, and posts for potential on-line threats. To be sure, the police have always relied upon large quantities of data, but the promise of “big data” lies in its enormous volume, its reach, and the application of sophisticated computer analytics.

In response, there is a small but important emerging scholarship that addresses some of the difficult questions posed by the use of big data by the police. In two recent pieces, both Andrew G. Ferguson and Michael Rich address these issues especially well. While each focuses on different aspects of big data use, and each comes to different conclusions about the Fourth Amendment implications, this pair of articles introduces an evolving set of concerns that should be incorporated into every criminal procedure scholar’s current knowledge.

The legality of an officer’s decision to engage in a so-called stop-and-frisk depends on a finding of individualized reasonable suspicion. That’s the law, of course, but defining the content of reasonable suspicion has always been tricky. As many law professors have lamented, the Terry standard is malleable to the point of being meaningless. To make matters worse, the Supreme Court has repeatedly emphasized that reasonable suspicion is neither a quantifiable nor a scientific concept.

Enter big data. What if the police use big data programs as the basis for stops or frisks? What if, for instance, an officer is alerted by a piece of software that trawls through millions of pieces of data to predict that a person is highly likely to commit a violent crime (based on an algorithm of his social connections, criminal history, and social media posts) in the very place the officer finds him (based on an algorithm using historical crime data)? Should a court uphold a stop and frisk that subsequently results in the discovery of an illegal firearm?

As both Ferguson and Rich point out, the Fourth Amendment fails to provide easy answers. This difficulty arises in part because traditional individualized suspicion is itself a fuzzy concept. And the most relevant analogies to big data programs are limited. For instance, we might compare big data programs to drug-sniffing dogs, since both are instruments for turning raw data into assessments about criminal suspicion. But direct application of the Supreme Court’s drug dog cases poses problems, however, since the programming of a predictive algorithm is far more complex than a dog’s sniff to both the officer who relies on its predictions and the judge who evaluates it (Rich, Pp. 60-62.)

Moreover, Ferguson and Rich arrive at different conclusions as to whether big data alone would provide reasonable suspicion for a stop. Ferguson, who uses a broader definition of big data than does Rich, contends that reliance upon big data could provide a far greater quantity of detailed information than any individual officer or informant coming from a “small data” perspective ever could. Rich, who focuses on predictive automated suspicion programs, argues instead that big data alone is insufficient for Fourth Amendment suspicion. A prediction made by software is incapable, contends Rich, of providing a true totality-of-the-circumstances assessment as required by Supreme Court precedent.

These differences matter less than the broader insights about big data that both Ferguson and Rich identify. The use of big data may provide distinct advantages over traditional policing. Contrary to longstanding concerns that individual officers use proxies like race, class, and neighborhood as the basis for suspicion, big data can bring more accuracy and precision to policing (Ferguson, P. 389.) And if suspicion is increasingly based upon data—rather than human intuition—then we might find a greater emphasis on accountability and transparency in policing as a result (Ferguson, P. 393.)

On the other side of the ledger, big data’s promise of objective analysis may be misleading if, for example, its results rely on mistaken inputs. But finding mistakes in these enormous databases, often handled by countless persons and analyzed by “black box” algorithms may be near impossible. To make matters worse, as Rich points out, the Supreme Court’s expansion of the good faith doctrine in cases like Herring v. United States (2009) establishes enormous obstacles for defendants challenging big data accuracy. How easily can a defendant demonstrate that a stop or frisk in his case was based on “deliberate, reckless, or grossly negligent” misconduct, or “recurring or systemic negligence”? Not very, argues Rich, and as a result, we may end up with a system in which “bad data and benign neglect could flourish” (P. 66.)

To be sure, those programs that will strain current Fourth Amendment doctrine most severely—predictive programs that will alert police to criminally suspicions persons—have not yet become part of ordinary policing. But both Ferguson and Rich agree that these programs are coming, and soon. And as with so many new policing technologies, the law is lagging behind (Ferguson, P. 410.) These two excellent pieces demonstrate the need to think about the inevitable widespread use of big data by the police in a systematic and reflective way, before the reality on the ground gets too far ahead of the law that is meant to govern it.