The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power

53 Pages Posted: 9 Oct 2006 Last revised: 18 May 2010

See all articles by Juliet P. Stumpf

Juliet P. Stumpf

Lewis & Clark College - Lewis & Clark Law School; University of Oxford - Border Criminologies; Lewis & Clark College Paul L Boley Library

Date Written: 2006


This article provides a fresh theoretical perspective on the most important development in immigration law today: the convergence of immigration and criminal law. It proposes a unifying theory - membership theory - for why these two areas of law recently have become so connected, and why that convergence is troubling. Membership theory restricts individual rights and privileges to those who are members of a social contract between the government and the people.

Membership theory provides decisionmakers with justification for excluding individuals from society, using immigration and criminal law as the means of exclusion. It operates in the intersection between criminal and immigration law to mark an ever-expanding group of outsiders by denying them the privileges that citizens hold, such as the right to vote or to remain in the United States. Membership theory manifests in this new area through certain powers of the sovereign state: the power to punish, and the power to express moral condemnation.

This use of membership theory places the law on the edge of a crimmigration crisis. Only the harshest elements of each area of law make their way into the criminalization of immigration law, and the apparatus of the state is used to expel from society those deemed criminally alien. The result is an ever-expanding population of the excluded and alienated.

The article begins with a dystopia, narrating a future in which criminal and immigration law have completely merged, and membership theory has resulted in extreme divisions in our society between insiders and outsiders - between the included and the alienated. The rest of the article describes the seeds of that future in the past and present. Part II describes the present confluence of immigration and criminal law. Part III sets out the role of membership theory in those areas in excluding noncitizens and ex-offenders from society. It details the role of sovereign power in drawing and enforcing those lines of exclusion. The article concludes by describing the potential consequences of the convergence of these two areas and the use of membership theory to justify decisions to exclude.

Keywords: immigration, criminal, membership, sovereign power

Suggested Citation

Stumpf, Juliet P., The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power (2006). American University Law Review, Vol. 56, p. 367, 2006, Lewis & Clark Law School Legal Studies Research Paper No. 2007-2, Available at SSRN:

Juliet P. Stumpf (Contact Author)

Lewis & Clark College - Lewis & Clark Law School ( email )

10101 S. Terwilliger Boulevard
Portland, 97219-7762

University of Oxford - Border Criminologies ( email )

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

Lewis & Clark College Paul L Boley Library ( email )

10101 S. Terwilliger Blvd.
Portland, OR 97219
United States

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