My argument proceeds in four parts. In Part I, I introduce the history of crimes of migration, unpack their structure, and discuss the contemporary conditions of their enforcement—showing that crimes of migration have several features, like the fact that citizenship is a complete defense, that make them outliers in the American criminal law. In the history section, I discuss how crimes of migration were never meant to express any moral or pre-legal condemnation of crossing the U.S. border without permission but were rather instruments that filled in a regulatory gap: we had neither the will nor the technology to prevent undocumented migration over U.S. land borders. Lastly, I set out the conditions of contemporary enforcement practices and argue that they reflect a posture towards migrants that is dehumanizing. Within the coercive apparatus built to process 100,000 prosecutions per year, migrants are merely objects subject to coercive power; very little about migrants’ interactions within this system registers their humanity, much less their capacity, as human beings, to become members of the polity.
In Part II, I remark that crimes usually denote wrongs and ask what kind of wrong a crime of migration is. I acknowledge that in substance it looks like a regulatory wrong, but the better view is that it marks a wrong against the political theory we assert at the border, which posits that aliens have a duty to respect the unilateral prerogative of the United States to exclude them for any or no reason. Committing a crime of migration is wrong, then, for failing to respect this theory. But that theory is itself normatively controversial, and the aliens subject to the forceful execution of this theory have had no say in formulating it—indeed, the theory posits this exclusion of alien voices as legitimate. The normative controversy coupled with the absence of even a thin version of democratic consent to crimes of migration means that aliens may legitimately claim that their action was not wrong at all but rather that the wrongful act lies in the State’s exclusion. This is uniquely problematic terrain on which to impose criminal condemnation and punishment. After establishing the wrong criminalized by crimes of migration, I defend it against more intuitive conceptions of harm, like trespass to property, unfair labor competition, and harms to legal administration. Seeing harm in any of these cases, I urge, rests on the legitimacy of the sovereign power that the United States asserts at the border. Because of this contingency and because the violation of sovereignty is itself perceived as a harm, crimes of migration should be viewed as wrongs against a political theory.
In Part III, I evaluate crimes of migration in light of leading theories that specify the boundaries of the legitimate use of the criminal power. Crimes of migration fare quite poorly under these criteria, even those—like utilitarianism—that are consequentialist. Even so, I cannot conclude that these theories definitively forbid the criminalization of migration because they proceed from an implicit assumption of a closed political community. To counter this failing, I offer my own account of the criminal law that views democratic consent as an essential feature of legitimate criminal punishment, and I urge that crimes of migration are less legitimate for lacking it. And indeed, the lack of consent, and the further lack of democratic participation by aliens that it implies, compounds the normative doubt at the core of immigration exclusion since there is no recognized means by which aliens may counter our assertion that migration without permission is a criminal wrong. Ultimately, I conclude, we should refrain from criminalizing migration because we lack substantive—borders as a means to exclude peaceful persons are normatively controversial—and procedural—aliens have no say in the border regime they are subject to—confidence in the moral condemnation we express by criminalizing migration.
Part IV focuses on punishment. I assume arguendo the legitimacy of criminalizing border crossing but expose how imposing incarceration on top of deportation in response to crimes of migration is gratuitous. Deportation as a punishment for crimes of migration, I argue, relies on the ancient punitive principle of an “eye for an eye.” Under this symmetrical theory of just punishment, deportation extinguishes the State’s punitive interest by revisiting on the wrongdoer exactly what he wrought—even meeting, incidentally, the State’s recidivism concerns. It follows that incarceration on top of deportation is necessarily excessive because deportation has exhausted the State’s interest—there is simply nothing left for incarceration to vindicate.
Ultimately, I do not resolve the question whether borders can have force; I describe what kind of force the border may bring to bear and what theory can ground the imposition of that force. I conclude here that crimes of migration have grave normative flaws that should lead us to revoke their status in the criminal law. More robustly, incarceration cannot justifiably act as a supplement to deportation in response to a crime of migration. The double coercion it imposes exceeds the interest the United States can assert under the eye-for-an-eye theory of just punishment that imposing deportation relies on in this context.
Exposing crimes of migration as among the most problematic expressions of a liberal democracy’s power over migrants should reorient scholarly agendas and reform efforts, which are currently organized around the critique and reform of deportation. More practically, the arguments raised here should spark reflection in those charged with executing these criminal laws. Legal actors working in democratic societies, Dan Markel argued, could find good reasons in political theory to enforce misguided or bad laws. This rationale, I show, has no purchase in this context, and so legal actors should be troubled in giving force to crimes of migration.
