The Sentencing Judge as Immigration Judge
44 Pages Posted: 27 Sep 2002
Date Written: September 2002
Non-citizens who commit crimes large and small work their way through two huge bureaucracies: the immigration enforcement and the criminal justice systems. When a non-citizen commits a crime, the event can result in a criminal conviction, which might then trigger removal from the country.
However badly these two systems operate by themselves, they work even more poorly when they are haphazardly combined. These two systems duplicate many tasks, gathering many of the same facts about the non-citizen and employing two distinct sets of investigators and judges. Working together, they needlessly lengthen the time a non-citizen must sit in jail and postpone the date when the government can remove the person from the country.
In this article, we ask whether a judge who sentences a non-citizen criminal offender should also determine whether to remove that individual from the country. There are reasons to believe that both the government and the deportable offender would benefit from the merger of these two decisions that now operate on largely separate tracks. In the current system, most non-citizens who are removable because of their criminal convictions are never removed.
The government would benefit if the sentencing judge functioned as an immigration judge because the sentencing investigation would provide a reliable way to identify more deportable offenders. A merger of sentencing and immigration determinations would also yield less duplication of resources, quicker deportation, and lower detention costs.
Deportable offenders would also benefit from quicker resolution of their claims, shorter detentions, the institutionalized use of prosecutorial discretion for immigration decisions, the presence of a truly neutral judge, and (most important) the provision of counsel and the other procedural protections of the criminal system.
An intelligent merger of the criminal sentencing and immigration systems might bring out the best in both systems. The convergence of the two systems is happening now in a haphazard way that undermines liberty and wastes public resources. If convergence is going to happen anyway, perhaps it is best to get in front of the movement and to manage its direction.
Keywords: Immigration Law, Criminal Procedure, Sentencing, Administrative Law
JEL Classification: K14, K41, K42, K23
Suggested Citation: Suggested Citation