The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Donald Trump recently described at least some immigrants as "animals" who must be deported. There has been much controversy over whether Trump meant to condemn undocumented immigrants generally, or just those who are members of the MS-13 gang. But few if any commentators question the basic idea that it is entirely justifiable to deport immigrants who are gang members, or commit other crimes. That view is common ground to almost everyone in mainstream politics, not just Trumpist immigration hawks. But, however popular it may be, that conclusion is wrong. Immigrants who commit offenses worthy of retribution should be punished. But they should not be subjected to any more punishment than native-born Americans who commit the same crimes. That means they should not be deported, unless deportation is also imposed on natives.
I. How Deportation is Like Racial Discrimination.
What can possibly justify such a radical and unpopular conclusion? The answer, I think, is that it is wrong to punish people for morally arbitrary characteristics that are beyond their control. They include such things as race, gender, ethnicity, and—in this case—where you happen to be born, and to which parents. Consider the following hypothetical debate, set in the Jim Crow-era South:
Integrationist: We must abolish Jim Crow segregation. It is wrong to restrict people's freedom based on their ancestry or skin color. No one can control those characteristics, and they tell us nothing about a person's moral worth.
Segregationist: We must maintain segregation in order to protect whites from black criminals. Don't get me wrong; some blacks are truly wonderful. But a lot of them are thieves, murderers, or rapists. All too many of them are just not the best people. Unless we maintain segregation, there will be an epidemic of black crime against whites. [Ed. note: segregationists did in fact make arguments like this as one of their defenses of Jim Crow]
Moderate: I agree that black crime could be a problem under integration. But surely we don't have to segregate all blacks to deal with it. Let's allow blacks to integrate. But if any of them commit a crime, then we reimpose Jim Crow restrictions on those people, after they pay their fines or complete their prison sentences. We don't need to segregate blacks who have done nothing wrong. But black criminals have proven they aren't fit to integrate with white society. And the threat of reimposing Jim Crow can help deter blacks from committing crimes in the first place.
The "Moderate's" position is a great improvement over conventional segregationism. Under his approach, the only blacks saddled with Jim Crow are those who have been convicted of a crime. The vast majority of blacks are now free to integrate (though woe betide them if they are wrongly convicted or inadvertently commit some small offense).
Nonetheless, most modern Americans would surely reject Moderate's proposal. Why? Because it imposes a severe additional punishment on black criminals solely because of their race. For the sin of having chosen parents of the wrong color, they are punished far more severely than whites who have been convicted of the same crimes. Even if a person has committed an offense that merits retribution, it is wrong to inflict additional punishment on them simply because they have the wrong parents.
Yet giving people extra punishment for choosing the wrong parents is exactly what we do when we deport immigrant offenders, but not natives who have been convicted of the same crimes. In the overwhelming majority of cases, what distinguishes an immigrant from a native-born citizen is some combination of who their parents were and where they were born. If you were not born on US soil or to US-citizen parents or have a close relative in the US, the odds against you being able to become a US citizen are overwhelming. You will likely have to wait decades or even centuries before getting admitted as a legal immigrant. Who your parents are and where you were born are morally arbitrary characteristics in much the same way as race and ethnicity are: We have no control over them, and they say nothing about our inherent moral worth.
Deportation of immigrants convicted of crimes might not be a major moral problem if it was limited to those who commit very serious offenses, such as rape or murder. But undocumented immigrants are often prioritized for deportation even for very minor offenses, such as traffic violations. Even legal immigrants with green cards can be deported for some very minor crimes, including possession of small amounts of almost any illegal drug (save for marijuana).
In many situations, offenses that earn a native a small fine, a suspended sentence, or just a minor slap on the wrist, will get an immigrant (even a legal one) deported to a lifetime of poverty and oppression. As libertarian sociologist Fabio Rojas (one of the few open advocates of ending deportation of immigrants convicted of crimes) puts it: "[d]eportation is an extremely harsh punishment that is not appropriate for most crimes. If you steal a car, you may deserve a few months in prison. You don't deserve to be sent to a country where you don't know people, where you have to start over from scratch, and, in some cases, where you might be killed." I think a car thief may deserve more than a few months in prison. But that still is not the equivalent of deportation.
For many people, the difference between immigrant criminals and native ones is that the government has the right to exclude immigrants for pretty much any reason it wants, much like private property owners and members of clubs can exclude outsiders even if they don't have a good reason for doing so. I criticized the house and club analogies in some detail here. If either of these theories correct, it readily justifies deporting immigrants convicted of crimes—but also pretty much any other immigrants the government wants to bar for any reason, or even no reason at all. In addition, the house and club analogies, also have deeply illiberal implications for native-born citizens, too. In this post, I set these issues aside, in order to focus on the idea that criminal immigrants deserve to be deported even if other immigrants (or most others) do not.
Another standard justification for deporting immigrants convicted of crimes is to prevent them from committing future crimes on American soil. Many criminals are likely to become recidivists after completing their sentences. If we deport them, any future crimes they commit will occur somewhere else. But this very same reasoning can justify deporting native-born criminals no less than immigrant ones. Many of them are also likely to reoffend. And if we deport them, they might do it somewhere else rather than in the US. Getting rid of potential recidivists cannot justify deporting immigrant offenders, but not native ones who have committed the same sorts of crimes and have a comparable risk of recidivism. And it cannot justify deporting either in cases where we have other, more humane options, for reducing recidivism. Similar logic applies to claims that deportation is preferable because it is cheaper than imprisonment (if it is done instead of a prison sentence, rather than in addition to it). We can potentially save money by deporting native-born criminals too.
It is not my view that discriminatory deportation of criminal immigrants is indefensible under any conceivable circumstances. As with other important rights, such as freedom of speech or property rights, in my view the right to be free of unjust discrimination is a strong presumption, but not absolute. That is also my view of immigration and freedom of movement generally. If violating an important right is the only way to prevent some much greater evil, then the violation may well be justified in that extreme situation. But before we accept such a policy, there must be strong evidence that the great evil really is going to happen, and that committing a serious injustice really is the only way to prevent it.
II. Why it Doesn't Matter that Deportation Technically is not a Form of Criminal Punishment.
Some might object to my whole line of argument by pointing out that deportation is not a form of punishment. Under present law, that is technically true. However, if a person is deported because they have committed some crime, that is still a massive additional sanction imposed on them by the government, whether it technically qualifies as criminal punishment or not. The technical legal distinction does not translate into a meaningful moral difference. If it did, we could use the same logic to justify "Moderate's" proposal of reimposing Jim Crow on African-Americans who commit crimes. Just define resegregation as a civil remedy rather than a punishment, and you are all set!
The similarity between deportation for crimes and conventional criminal punishment has been recognized by no less an authority than the United States Supreme Court, in the recent case of Sessions v. Dimaya. In her plurality opinion, Justice Elena Kagan notes that "deportation is a particularly severe penalty, which may be of greater concern to a convicted alien than any potential jail sentence" (citations omitted). In a concurring opinion, conservative Justice Neil Gorsuch (a Trump appointee) took issue with some of Kagan's analysis, but still noted that deportation is comparable to other "severe" penalties, such as "compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely."
III. What About Equal-Opportunity Deportation?
Much of my critique of deportation is obviated if we adopt an "equal opportunity" deportation policy under which the penalty is imposed on certain classes of criminals regardless of whether they are immigrants or not. Perhaps some people have committed acts so terrible that we are justified in excluding them from the US forever. Something like this idea arguably underpinned the late 18th and early 19th century British policy of "transportation," under which some types of criminals were permanently exiled to Australia.
Today, the US and other liberal democracies reject the use of deportation as a form of punishment for crime. It is considered too cruel for even the worst criminals (so long as those criminals are not immigrants, that is). I am not entirely sure this is correct. If a crime is horrible enough that it is permissible to sentence the perpetrator to death, life imprisonment without parole, or an extremely long prison sentence (also without parole), I am not sure that deportation can never be justified in such cases. It is far from clear that is necessarily worse than a multi-decade prison sentence, much less death. In that respect, Neil Gorsuch may be right when he argues that deportation is not a uniquely severe sanction, but one comparable to at least some other severe penalties. The use of deportation as punishment might also be more defensible if the exile imposed is "only" temporary rather than permanent. A year of exile may not be obviously worse than a year in prison.
Here, I will not try to resolve the issue of whether deportation can ever be a just form of punishment. But if it ever is, it must indeed be equal opportunity. The punishment should fit the crime—not the criminal's choice of parents.