The Migration of Abolition Theory

Abstract

This Article considers whether and how theories of abolition developed by criminal law scholars are transferrable to the realm of immigration enforcement. A key question is how abolitionist principles might be employed in support of critiques of the United States’ immigration regulatory regime in the same way that these principles have been deployed in denouncing racialized policing and an injurious, industrialized prison system. This Article makes two contributions - first, it identifies and illuminates a methodology adopted by critical and decarceral criminal law scholars: (i) denouncing the harms of a structural system, (ii) identifying the normative justification(s) for this system, and (iii) proposing alternatives that might adequately, or in a superior way, satisfy those principles, ideally in a more humane, equitable, and cost-efficient manner. Second, this Article demonstrates the exigent necessity of mapping this methodology onto the logic of immigration enforcement. To do so, this Article highlights the challenges that confront abolitionists in the complementary arenas of immigration scholarship and activism. Importantly, scholars have omitted the key step of unearthing possible normative justifications for immigration enforcement. Many have begun proposing alternative systems without first considering whether immigration restrictions have any normative foundation upon which to stand. This Article elucidates some possible operating principle(s) of the immigration regulatory system and critiques each in turn. Finally, this Article concludes with a clarion call urging clarification by scholars and activists about which aspect of immigration enforcement merits abolition - detention, deportation, or exclusion - if not all three.

Keywords: abolition, decarceration, immigration, deportation, exclusion, enforcement, ICE