Overcriminalizing Immigration

41 Pages Posted: 3 Feb 2013

See all articles by Jennifer M. Chacón

Jennifer M. Chacón

UCLA School of Law; University of Oxford - Border Criminologies

Date Written: 2012


This Article argues that contemporary immigration policy is a site of overcriminalization. Part I discusses the apparent decline of federal exclusivity in immigration regulation and the rise of state and local legislation — particularly state criminal laws — aimed at controlling migration. Part II discusses the significant expansion of federal immigration enforcement efforts and, in particular, the recent dramatic rise in the use of federal criminal sanctions as a means of enforcing immigration laws. Part III discusses the rise of state and local participation in the enforcement of federal immigration laws and the consequent increase in the policing of low-level state criminal offenses in certain communities. The final section of the paper explains why the resulting policies constitute overcriminalization. Overcriminalization occurs when a legislature defines too many different activities as “crime,” when the system excessively punishes offenses, or both. In a system characterized by overcriminalization, law enforcement operates with an undesirable degree of unchecked discretion, procedural protections are undercut, and scarce resources are misallocated in crime control efforts. All of the major problems associated with overcriminalization appear in contemporary immigration enforcement. The article therefore urges a move away from the criminalization of labor migration.

Suggested Citation

Chacón, Jennifer M., Overcriminalizing Immigration (2012). Journal of Criminal Law and Criminology, Vol. 102, No. 3, 2012, UC Irvine School of Law Research Paper No. 2013-91, Criminal Justice, Borders and Citizenship Research Paper No. 2210589, Available at SSRN: https://ssrn.com/abstract=2210589

Jennifer M. Chacón (Contact Author)

UCLA School of Law ( email )

385 Charles E. Young Drive East
Los Angeles, CA 90095

University of Oxford - Border Criminologies ( email )

Manor Road Building
Manor Rd
Oxford, OX1 3UQ
United Kingdom

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