[*PG771]DEPORTATION AND JUSTICE: A CONSTITUTIONAL DIALOGUE
Abstract: Recent statutory changes to United States immigration law have resulted in a large increase in the number of lawful permanent resident noncitizens who are deported because of prior criminal conduct. Now, deportation is often a virtually automatic consequence of conviction for an increasingly minor array of crimes including possessory drug offenses and shoplifting. Under current statutory law, permanent resident noncitizens may be deported for crimes that were not grounds for deportation when they were committed and there may be no possibility of mercy or humanitarian relief. This Dialogue explores arguments for and against this system. Specifically, it examines the idea, rooted in history, that deportation is an unconstitutional punishment for criminal offenses.
[T]o understand what a constitution is, one must look not for some crystalline core or essence of unambiguous meaning but precisely at the ambiguities, the specific oppositions that this specific concept helps us to hold in tension.1
Critic: Mr. Kanstroom, I have read your two most recent articles2 and I think I get the gist of your arguments but I am puzzled by a few things. First, could you state your basic criticism of the current state of U.S. deportation law?
Author: Our current deportation laws are disproportionately harsh and unforgiving. The system as a whole is unjust. As a social experi[*PG772]ment it has caused great harm. As a model upon which to base future enforcement systems, it is excessive and dangerous.
Critic: Thank you. That was simple and concise. Now, could you be just a bit more specific?
Author: Sure. One of the central features of U.S. immigration law during the past decade or so has been a dramatic increase in the numbers of noncitizens who are deported due to criminal conduct.3 Many politicians and commentators have supported this trend, which culminated in the package of laws enacted in 1996.4 Recently, however, concerns have been voiced about the harshness of this system,5 its inflexibility,6 the effect it has had on families and communities,7 and its meaning as an example of excessive government power directed against a relatively powerless minority.8 These concerns, which I think are well-founded, should lead us to question our approach to this whole subject.
First, and most basically, why should we deport noncitizens, particularly long-term legal residents who commit crimes, instead of just punishing them in the criminal justice system as we do citizens? Even though we have grown accustomed to this idea, it is far from self-evident that our current system makes sense. Indeed, it embodies a host of contestable assumptions about the meaning of “permanent” or other long-term residence in the United States. It also seems strongly to undervalue family unity and stability 9 in the service of law enforcement goals. My secondary point, though, is that if we must do [*PG773]this, we should at least strive for consistency in our constitutional understanding of what seem clearly to be punitive sanctions.
Critic: Tell me more about why you think that deportation for crime is wrong. I have to say that it seems perfectly reasonable to me.
Author: Well, let me start with what I think is my strongest point and then we can move to more marginal issues. If proportionality is a fundamental component of justice, as I believe it is, then it is unfair and unjust to deport and banish for life a long-term legal permanent resident with family here and no contacts in her country of birth who commits a single minor crime.
Critic: Do we really do that?
Author: It’s even worse than that. Imagine a person who has lived in the United States since early childhood as a lawful permanent resident, whose entire family is here, whose spouse and children are U.S. citizens, who speaks only English and knows no other culture but ours. Such a person can now be arrested by armed agents of the Immigration and Naturalization Service, will have no right to appointed counsel, may be subjected to mandatory detention with no right even to apply for release on bail, and may be deported and banished forever.10 All this for a minor criminal offense committed years ago, which may not even have been a ground for deportation when it was committed and may not have been considered a conviction under the law of the state where it occurred. Our current laws fail to provide an immigration judge with any discretion to provide humanitarian relief in such a situation. Finally, the deportee may well have no right to have an independent federal judge review the case.11
Critic: You do make it sound pretty bad; but slow down. What do you mean by “a minor offense?”
Author: A conviction for petty larceny,12 simple assault,13 or driving while intoxicated can be an aggravated felony.14 A noncitizen con[*PG774]victed of an aggravated felony is subject to removal from the United States with virtually no possibility of relief on humanitarian or other grounds. That person will also be banned for life from returning to the United States. Length of residence is irrelevant. Family ties here are meaningless. Hardship is immaterial.
Critic: But if the crime is a felony then it hardly qualifies as a minor crime, does it?
Author: Well, maybe not. But as it turns out, the definition of a felony is very complicated in this context. The INS has moved to deport people, and the Board of Immigration Appeals15 and some courts16 have affirmed deportation orders even if the state in which the conviction occurred does not consider it a felony.17 You’d be surprised how minor some of these cases are.
Critic: Hmm. Well, in any case, the defendant has been convicted, presumably after a trial or after a plea with counsel. So, it must have been serious or the case could have been disposed of in some other way to avoid deportation problems.
Author: Well, I’d like to think so, but when you get into the trenches a bit the picture is not so pretty. First, as you probably know, there is no Sixth Amendment right to appointed counsel in deportation proceedings.18 Nor is it generally required as a matter of due process.19 Second, although many defense lawyers, appointed or privately retained, may care about deportation consequences, many others may not.20 It [*PG775]is far from settled that it is ineffective assistance for a defense lawyer to overlook or even misadvise about deportation. Indeed, the general rule is to the contrary.21 Courts are generally quite reluctant to allow a defendant to withdraw a plea, even if he was never warned that it would result in deportation.22
Critic: But if a lawyer does do a good job and gets a dismissal or some sort of state diversionary disposition that will prevent deportation, right?
Author: No, it will not. The Board of Immigration Appeals has held that the federal definition of conviction,23 passed by Congress in 1996, controls in all such cases.24 As a result, even if the sentencing judge dismisses the case, it will not necessarily prevent deportation.
Critic: Well, that does seem harsh; though I suppose it is a natural consequence of the fact that immigration is a question of federal and not state law. But, rather than open that can of worms, answer this for me. Aren’t there still ways to avoid deportation; like dragging the case out with years of appeals?
Author: Not really. Some think that this is the essence of deportation defense25 but Congress has created a system of mandatory detention [*PG776]of virtually all noncitizens who face deportation for crime.26 This means that if a person wants to contest the case, she will likely remain incarcerated for however long such appeals last.27 This is, to say the least, a very powerful inducement to give up. And as I, or anyone else who practices regularly in the field can tell you, many, many clients do simply give up even though they have powerful arguments against deportation.28 Also, the 1996 laws severely restrict judicial review in removal cases that involve criminal conduct.29
Critic: Well, doesn’t that argue in favor of these laws as a legitimate disincentive to dilatory tactics and risk of flight?
Author: I suppose it might. But we ought to weigh the effects of the alleged disease against those of the cure. Surely there are better ways to speed cases along than mandatory detention and the complete elimination of judicial review.
Critic: What about discretion? You make it sound as if there is no hope for any of these people. I thought you could ask an immigration judge to forgive and forget a minor conviction?
Author: Well, under certain very limited circumstances you still can.30 But not if there has been a conviction for an aggravated felony.31 And, as I explained before, many apparently minor crimes, including state misdemeanors and cases that have been disposed of under state diversionary procedures for minor offenders, are aggravated felonies.
Critic: So what remedy would you propose for all this?
Author: Well, I think the system of deporting legal permanent residents for criminal conduct should be scrapped entirely by the Congress. It is extremely harsh; it harms families who are left behind; it embodies a throw-away attitude about people that is a dangerous [*PG777]model; it is bad foreign policy because the countries to which people are sent then have to deal with an array of related social problems which they are often ill-equipped to handle. Also, it severely depreciates the status of lawful permanent residents and it seems to constitute double punishment.32
Critic: But wouldn’t that depreciate the value of citizenship? The essence of the citizen/alien dichotomy is that aliens are not full members of the nation-state. Isn’t the risk of deportation one of the main components of that lack of full membership?
Author: I suppose in some abstract sense it is. But the harshness and social costs of certain types of deportations are more compelling. Furthermore, the risk of deportation is far from the only disadvantage facing noncitizens. After all, noncitizens are required to register with INS,33 and to be very careful about how long they remain outside the U.S. on pain of losing their status.34 They are not allowed to vote,35 they are ineligible for certain social safety net protections36 and ineligible for certain jobs.37 Their ability to bring family members here is much more limited than that of citizens.38 And so on. I really don’t see how a much more limited deportation regime threatens to bring down the whole citizen/alien edifice.39 There are still plenty of dis[*PG778]tinctions and inducements to naturalize. I doubt, in any case, that Congress will agree with me, so my other idea is simply that courts should apply specific constitutional protections to such cases, analogous to those granted to criminal defendants. I think the current system is basically unconstitutional.
Critic: Well, if our duly elected representatives want to get tough on criminal aliens40 you may not like it, but I hardly see why it’s unconstitutional. After all, aliens who come to the United States know that they are, in effect, on probation until they become citizens. If they violate their terms, they face the consequence they always knew was there: deportation. What’s unconstitutional about that?
Author: Your argument proves too much. It is one thing to say to a person, “you are on probation.” It is quite another to say, “you may be deported at any time for any reason, even if it’s a single drug offense, and you’ve lived here for fifty years, have no family elsewhere, etc. Even the fact that you complied with every term we placed on your residence at the time it was placed is irrelevant. You are now retroactively deemed in violation.” There have to be limits beyond which the probation metaphor breaks down. What if we were to say to people, “you may enter the U.S. and live here, but if you litter you will be shot?” It is hardly a sufficient justification of such a law to say that it’s just part of their “probation” as noncitizens.
Critic: That’s an absurd hypothetical, of course. But leaving the death penalty out of it for the moment, I’m not convinced that anything is constitutionally wrong with a harsh deportation law. If a citizen can [*PG779]get life in prison for petty larceny in a “three strikes” jurisdiction why couldn’t we deport someone for littering?
Author: Your point is well-taken. And I suppose it’s obvious that I’m not a big fan of “three strikes” laws either. Much of the argument boils down to the question whether there is an implicit constitutional right to proportionality in penal laws. The Supreme Court, at the moment, seems clearly inclined to answer this general question negatively,41 though the Court has been somewhat more receptive to such claims in the past.42 But traditional deportation doctrine doesn’t ever address this issue because of the formalism that deportation of any type is never punishment for constitutional purposes.43 I think we should change at least that so that we could more directly grapple with the proportionality problem in the deportation context. 44
[*PG780]Critic: Well, maybe more consistency between deportation law and other legal questions would be a good thing. I’m not sure yet. Still, it seems that you want consistency on the theory of punishment side, but you don’t like the basic citizen/alien distinction as it has evolved. You may not like the plenary power doctrine and its implications for deportation law, but it’s not necessarily inconsistent, is it?
Author: Well, the current state of the law: a flexible procedural calculus in deportation proceedings derived from Yamataya v. Fisher 45 and Mathews v. Eldridge46 combined with a complex system of equal protection rights for noncitizens in other contexts, does have some inconsistencies. For example, a noncitizen in removal proceedings may have a right to appointed counsel but only if a reviewing court, on the basis of a record created without counsel, determines that counsel was required.47 And too heavy a reliance on the citizen/alien line raises substantial equal protection problems. It is, after all, not so easy to reconcile Yick Wo v. Hopkins 48 with Fong Yue Ting v. United States.49
Critic: Okay, but I still don’t see why deportation should be seen as punishment. Aliens may be punished by the criminal justice system if their violation is criminal; but the deportation itself is no more punishment than any other collateral consequence of criminal activity, like being evicted from public housing, for example. It’s part of the regulation of our immigration system. Your approach throws a lot of other well-settled doctrine into question.
Author: Maybe. Or perhaps what I mean to say is: “good.” I think that each ostensibly civil or collateral consequence should be considered on the merits to determine whether—under the circumstances in which it is imposed—it is punishment or not. It is hardly sufficient to say, as Justice Frankfurter once did, that it’s not punishment because the Court has not historically considered it to be punishment.50
Critic: So, precedent doesn’t matter to you, either?
Author: Precedent matters, of course but circumstances change, too. This system is uniquely punitive, even in a time of strict and harsh criminal laws such as the present.
[*PG781]Critic: Isn’t there a real distinction between regulation and punishment? The Court has certainly found this line workable for many years, in a wide variety of contexts.
Author: Let me answer this question with a question: what if Congress were to refer to the death penalty not as punishment but simply as the “temporal regulation of mortality?”
Critic: That would obviously be different. I think you are overstating the Court’s reliance on Congressional intent and formal categorization. Many factors go into these decisions. The Court understands the danger of formalistic reasoning.
Author: But what factors count, then?
Critic: Well, as I understand it the Court will consider the nature of the sanction, its history, and the reason why it is imposed.51
Author: Aha!
Critic: Aha?
Author: Yes. “Aha,” because you have now accepted my basic premise: that the label of punishment should be applied, if appropriate, to deportation as the product of a functional, historical, and intentional analysis. It should not be used to preclude that sort of inquiry.
The deportation of long-term, legal permanent residents for post-entry conduct is imposed as a direct consequence of a prior “bad” act. Its purpose can hardly be said to be compensatory. Congress was pretty clearly aiming at retribution or deterrence. These are indicia of punishment, not regulation. Even though the harshness of these laws is probably my main concern, it’s not just the harshness that matters.52
Critic: All right, I do see that a certain inevitably functional-type of argument emerges here, but I’m still not convinced that deportation itself rises to that level.
But let’s move on. What is it that really bothers you so much about the current system. Is it the retroactivity? I agree that that seems quite severe and if I were a judge I’d probably hold the government to a very high burden of clear drafting to accomplish this end, as I understand some judges have.53 I’d also probably extend every right to discretionary relief from deportation that I could think of, as other [*PG782]judges have.54 But do we really need to upset more than a century of settled constitutional doctrine to do this?
Author: I think so, and here’s why. First, although some judges have tried to do so, strict statutory interpretation55 will not work well in most cases because Congress has been quite clear about the retroactivity of these laws. The substitution of exceedingly nice statutory interpretation for forthright constitutional analysis may be justified and pragmatic in a given case, but it also risks delegitimizing the whole judicial enterprise.56 Ultimately, you will either have to invoke the ex post facto clause57 or perhaps rely on substantive due process or analogies from cases like In re Gault.58
More fundamentally, though, it’s not just the retroactivity that concerns me. To extend potentially arbitrary, retroactive, unreviewable government power over legal permanent residents renders their status unacceptably precarious. Indeed, it calls into question their status itself, as ostensibly “permanent” residents. Moreover, apart from their rights as individuals, we ought to be concerned, as I have argued elsewhere,59 and Jefferson and Madison long ago argued even more forcefully and eloquently, whenever government seeks such power. It is a dangerous experiment, to say the least, and it ought to be constitutionally resisted.
Critic: Well, maybe. You, Jefferson, and Madison might be right about the French who I suppose I could learn to tolerate. But why should I [*PG783]be so concerned about criminal aliens? Although the precise details of their “probation” might vary they surely know they shouldn’t be committing crimes. If they are convicted, the revocation of their residence here is not necessarily punishment for that crime and it doesn’t seem so unreasonable in any case. I’m not even sure it’s really retroactive. After all, they must have known that some crimes result in deportation. It’s just the details that have changed.
Author: Well, I have a couple of answers to this. The easiest might be to suggest re-reading Calder v. Bull.60 If a new law inflicts a greater punishment on a prior crime, it violates the ex post facto clause.61 As the Court put it more recently:
[A]lmost from the outset, we have recognized that central to the ex post facto prohibition is a concern for “the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.”62
Of course, you will undoubtedly note that I have now drifted into a somewhat circular reasoning process, myself—assuming the conclusion you are asking me to prove—that deportation is punishment. Since your question is really more one of fairness than settled doctrine, let me respond in that vein.
First, I do not plan to run for public office so perhaps I feel more comfortable than some parsing the appellation “criminal aliens” closely. There is a lot of variation among members of this group. For example, how does your no-punishment approach fit with people who may have come here as babies or young children? In our clinical immigration program at Boston College Law School we’ve encountered significant numbers of young people who actually thought they were U.S. citizens, right up to the point where they ended up in INS deten[*PG784]tion facing deportation. Others wanted to become citizens but couldn’t even start to do so until they turned eighteen, after which, in many INS districts, the process can take years, due to administrative delay (which, in turn, has been caused by increasing INS emphasis on enforcement as opposed to service).
Second, to reiterate, what of proportionality? Doesn’t it trouble you to see deportation based increasingly frequently on ever more minor crimes, like petty larceny or simple assault, that may have resulted in no jail time or even been dismissed by state court judges?
Third, what do you think about the problem of ineffective assistance of counsel where a person is not advised or wrongly advised about the deportation consequences of a plea? And what of a person who might have been rightly advised to take an Alford63 plea, maintaining innocence but accepting a sanction for any number of personal reasons? What would you do, as a judge, when such a person discovers that, due to a retroactive change in the law, he will be deported 20 years later?
Finally, and, perhaps most importantly, is it not also right to distinguish retroactive civil from criminal lawmaking at least in part on the basis of the ability of the political process to protect against government over-reaching?64 Who has less such ability than noncitizens?
Critic: Whew! Well, I see where some doctrinal maneuvering might be warranted but I still think you’ve put too much weight on this punishment aspect. As a matter of fact, I was worried at the very beginning of your Deportation, Social Control Essay65 by the way you slid right past the most basic justification for these laws—that Congress wanted to maintain credibility and legitimacy by crafting deportation systems that were tough and efficient, for a change. This is not an intent to punish, just to maintain respect for the rule-of-law.
Author: The strength of this point seems to depend on the extent to which we want to rely on the supposed intent of Congress. I am not a big believer in this particular fiction except, perhaps, in the context of a bill of attainder claim.66 But, even assuming that we could figure out [*PG785]what hundreds of representatives, senators and a president intended, I suppose I also have a Kantian sort of problem here. I just do not understand how we can avoid consideration of the actual effects of laws without sacrificing individuals as means to a very amorphous end. After all, one could say the same thing to any death-row inmate: we’re not doing this to punish you, just to vindicate our criminal justice system.67 In any event, I’d bet that most legislators who thought about these laws thought about them as punishment for crime anyway.68
Critic: Well, I’m not so sure, but let me raise a couple of more specific problems I have with your line of reasoning. First of all, I don’t see what it really gains you anyway. If, as you say, the convergence between the two systems often makes the deportation consequence automatic, then I don’t see what all the fuss about procedural rights would be about. There’s no live issue anyway, is there?
Author: I don’t think this is right. First, of course, my approach would impart substantive rights as well as procedural. Second, as to procedural rights, you have to remember that I am not suggesting necessarily that all of the procedures of a criminal trial should be available in deportation cases. I do not, for example, think a jury trial necessarily would be required. It seems to me that a quasi-criminal model could reasonably impart some rights and not others, as has been done in the past from Boyd v. United States69 to Kennedy v. Mendoza-Martinez70 to Gault71 to United States v. Halper.72
The strongest claim may be the right to appointed counsel and a recognition by courts that failure to consider deportation consequences is ineffective assistance of counsel. This is both because of my punishment argument and because of the increasing convergence between the criminal and deportation systems. It is increasingly reasonable to ask public defenders and other appointed counsel to take immigration consequences into effect. Training is better; materials [*PG786]are available, etc. Public Defender offices, at least in New York and Massachusetts, have recognized this responsibility. Others are doing the same. And private attorneys have no excuse, in my view, for ignoring these issues.
Critic: But what could a lawyer do in such a case? If the convergence is so complete and if the sanction is so automatic, a lawyer seems more like an ornament than a real protector.
Author: Good question. As a matter of fact, a similar question on this point was raised in Mendoza-Martinez.73 It’s a real problem for my argument but not conclusive and here’s the basic reason why: automatic does not necessarily mean inevitable. Inevitable does not necessarily mean constitutional. And constitutional does not mean eternally so.74
Put more pragmatically, there is always some play in the joints for a good lawyer to find. So a right to counsel can make a major difference, even in an apparently open and shut case. This is especially true if it means, as I believe it should, a right to a lawyer who is competent in both immigration and criminal law and who recognizes the constitutional issues at stake in such cases. We have not yet done enough studies to see how those who can afford such counsel fare as compared to those who cannot. In my experience, however, the difference is often profound.
Critic: Any other rights you think are especially important?
Author: Substantively, I’d suggest that the most significant claims are anti-retroactivity, and a right to bail both pending a final determination and after an order has entered if it cannot be enforced in a reasonable period of time. And if proportionality is going to be a part of our constitutional discourse in areas like fines,75 then I’d suggest it should also play a role in our analysis of deportation laws. I recognize, of course, that I’m swimming against a powerful stream on this latter point.
[*PG787]Critic: Well, since you brought up proportionality again, I have another problem with your approach. Doesn’t your use of the extended border control/social control dichotomy76 create a strange anomaly? Why should long-term resident aliens who face deportation for, say paperwork infractions, end up with fewer or less substantial protections than criminals?
Author: That is a conceptual problem, but I’m not sure that it’s my problem. It is often the case that civil sanctions can be more onerous than criminal ones. This is exactly why I do not suggest that we rely on the formal civil/criminal line so much as the more flexible and functional idea of punishment. And that’s why the Supreme Court, for more than a century, has repeatedly found itself drawn back to this functional approach in various contexts.77 I’d analyze “civil” deportation cases more or less as the Court dealt with the “civil” fines at issue in Halper.78 Indeed, I detect a trend of this type in the way some courts are approaching retroactivity analysis in recent deportation cases. The First Circuit, for example, recently held that Section 212(c) relief will continue to be available for persons whose convictions predated AEDPA79 if the noncitizen “reasonably relied” on the availability of such relief at the time of a guilty plea or at the time it was decided not to contest the charges.80 My point has simply been that such an approach is even more justifiable in the criminal deportation context because of the additional elements of social control, legislative intent (however amorphous), and systemic convergence.
Critic: You know, one other thing bothers me about this. Your approach depreciates the importance of the criminal system. Don’t you think it’s important to maintain a distinction that vindicates the shaming and other critical functions of the criminal sanction?81 If you keep blurring the line, pretty soon a criminal conviction will lose its meaning. Isn’t it important to keep criminal sanctions distinct from non-punitive consequences of criminal action?
Author: This is a nice point, but I think it’s rather abstract and academic. My first goals are fairness and consistency in the real treatment [*PG788]of real people to the maximum extent possible consistent with realistic cost and the maintenance of basic legitimacy. I am prepared to say that those should be the goals of our legal system in general. The best way to accomplish those goals is to understand constitutional rights of all persons functionally, not formalistically, and not too symbolically. Moreover, the obviously punitive intent of these laws strongly supports my doctrinal claim that deportation of this type is punishment. As Holmes once put it, “even a dog distinguishes between being stumbled over and being kicked.”82 I’d suggest that this also applies to being kicked out of the country for having done something wrong.
If you want to have a symbolic aspect of the criminal justice system focus on the people you really want to condemn, then you can certainly have that. But it seems wrong to me to deprive people of the right to counsel or subject them to retroactive sanctions or incarcerate them with no right to bail simply because you are afraid of some abstract symbolic consequence that might flow from recognizing the reality of what’s being done to them.