A friend of mine asked me a question a few weeks ago. As the old saying goes, it’s all grist for the mill.
It wasn’t a bad question.
We were discussing the current immigration policy, and the fact that a small child, a US citizen, was deported with her mother. This administration has done this several times: children on lifesaving cancer treatment, ripped from the US and shoved on a plane, no medications, no treatment, to countries where they will surely die. Or children, babies, ripped from breastfeeing immigrant mothers, their parents detained and exiled away and maybe given the choice to take their US citizen children1 with them.
And he asked, “what’s the actual way to deal with non-citizens who have citizen children?”
It’s not a bad question. It’s not.
Let’s assume a woman is here without documentation. Illegally, in the common parlance, if not always entirely accurate.2 Let’s assume that, for the sake of argument, she is subject to removal.
But she has a child, yeah? A child who was born in the jurisdiction of the United States, which (at least until the Supreme Court decides to chuck literally more than a century of well-settled law regarding birthright citizenship) is a US citizen.3
Does she get a pass? How long? Until the kid’s 18?
What if she has a drunk driving conviction? Petty theft?
What about something more serious? Maybe that drunk driving killed someone?
I mean, I can be an asshole law school gunner4 and change the hypothetical all day long here to keep making it harder.
And we can struggle more and more and more to come up with some sort of articulable principle that can be always applied.
Or, if you wind up in prosecution for a while like I did, you learn quickly that strict enforcement of the law for everyone regardless of circumstance just plain won’t work. You don’t have the resources to prosecute every case that comes across your desk. You can’t afford to; figuratively and literally. Drafting complaints takes time, reviewing discovery takes time, evaluating the cases takes time. And the office budget isn’t unlimited either. If you blow $50,000 getting an expert witness for a misdemeanor jury trial, you’re going to hear from a managing attorney in the office real quick and it’s not going to be a friendly conversation.
That doesn’t just happen in the prosecutor’s office, either.
About two years into my tenure there, the local college campus transitioned from a basic rent-a-cop security force to an actual police department with sworn officers with the power to actually arrest people and write enforceable tickets. They hired one guy who had bombed out of probation from both the city I worked in and the larger neighboring one. He wasn’t cut out to be a cop, but he came from a long line of officers and his sister was a captain on the local force.
There was an intersection with a four-way stop sign that people tended to do the classic Wisconsin rolling stop through between two parts of the college campus. He’d sit there and ticket everyone he saw. He’d roll through neighborhoods adjoining campus and ticket every violation he came across. Parking. Expired tabs. Too close to the intersection. Too far from the curb. He’d sit at a Kwik Trip near campus and just wait for every little traffic violation he could find. There was no talking your way out of things with Super Trooper Bob with his mirrored Ray-Bans and cop stache.
And everyone in that area hated him. Hated the man’s guts. Everyone in town started challenging their cases. I could either work out deals to dismiss them or reduce fines or look at taking over 150 cases to bench trials every month.5
Eventually he was run out of his position when the university chief got sick of fielding the complaints and well all figured out he’d actually been operating out of his jurisdiction most of the time anyway.6
Most of the law enforcement I worked with, though, understood the need for some good judgment. They had a pretty good internal judgment (and so did their supervisors) for when to put their foot down and when to sigh and let it go with a warning. Good cops know how important it is to have a good relationship with their community. If they piss off the community and nobody thinks they are going to be fair or helpful, the community won’t cooperate when there’s an actual emergency or a real crime to be solved. That turns into vigilante justice or people dying in emergencies real quick.
And some of that good relationship is knowing when to look the other way.
Same was true for me. I could be an asshole. Sure, I could. I could strictly enforce every law to the letter and demand the maximum penalty every time.
I had the power of the State behind me. Every day, I thought about that: I was an assistant district attorney. Every case I was the attorney of record on, I was representing the State of Wisconsin. I may have been largely on lower-level cases with a few moderate felonies, but that never made my job any less serious. I had the power to ruin people’s lives quite literally with a stroke of a keyboard. Just filing a case for some people could mean literally tens of thousands of dollars in attorney’s fees and time and stress for them.
And even just filing the case, even if it was dismissed, meant it would show up in CCAP, the open court records system. People could search their name and find it.
So, I always had to look at every case before charging through the lens of, “is this worth it? What is the community getting out of this?”
Does this person need a conviction? Does this person need charges to get them to pay some restitution, but could be dropped later? Do I charge this with an eye towards a DJOC?7 Do they need a fine?
Or does this person need prison, and I need to put them there? Incarceration was never my first impulse, but there were some people who needed the longest adult time-out I could impose on them, and I sleep better at night knowing I put them off the streets for at least a time.
Honestly, I had a pretty limited toolbox of things to get justice. I could fine them or jail them or threaten to do either of those things to get them to do something else, and that’s about it really. I had to try to fashion justice out of those things.
Maybe I could get them into treatment with the promise of a reduced sentencing recommendation. Maybe I could get them to pay restitution for a petty theft and avoid filing the case in the first place.
But I always had this front of mind: what’s justice here?
Is it just punishment?
Generally speaking, there are a number of different legal theories of punishment, all of which are incorporated into our system in some way, shape, or form. Which ones take precedence in various legal systems simply depends on the beliefs of various lawmakers at the time the law is crafted or enforced.
Most people are not even aware that they believe in these various theories; they will just talk about their ethical or moral beliefs.
But, essentially, it boils down into two main views: retributivism and utilitarianism.
Retributivism takes the view of that an offender has created a debt to society that must be paid, and punishment is essentially a more civilized form of social revenge. The death penalty is a retributive stance. An eye for an eye, a tooth for a tooth.
Utilitarianism looks to the beneficial consequences for society (here, prevention of future crimes and safety of others.)
Under these two main views, there are five main distributive principles; one retributive, and four utilitarian.
The deontological desert. The distributive criteria here is the offender’s blameworthiness, which is the retributivist principle. This is an eye for an eye, a tooth for a tooth. By committing a social wrong, you owe a debt to society, and it must be repaid.
The factors relied upon to determine the amount of punishment that is imposed are the nature and extent of the harm, the culpability of the offender, justifying circumstances, and personal capacities.Incapacitation. The distributive criteria here is the offender’s dangerousness, which is a utilitarian principle. This is locking away a person for the sake of everyone else or finding other ways to take away a person’s ability to reoffend. An extreme end of this would be cutting off a thief’s hand.
The factors relied upon to determine the amount of punishment that is imposed are the period in which the offender will remain sufficiently dangerous as to require restraint, and methods to sufficiently restrain the offender to prevent that person from being dangerous again such as incarceration.Rehabilitation. The distributive criteria here is the offender’s amenability to rehabilitation, essentially social reprogramming, which is a utilitarian principle. By committing a social wrong, you show that you do not understand the rules; if you can show that you can follow the rules now, you are at less risk of recidivism and can be safely let back into society.
The factor relied upon to determine the amount and type of punishment that is imposed is the period required to rehabilitate the offender and programming required to rehabilitate them. Putting a drunk driver on probation with conditions that they complete chemical dependency treatment and a MADD victim impact panel would be an example here.Special Deterrence. The distributive criteria here is determining what will deter more criminal activity from this offender. This is a utilitarian principle. It’s the “Scared Straight” philosophy: how much of the book do I have to throw at you right now to make sure you have sufficiently learned your lesson and live your life as straight as an arrow from here forward? If the lesson is painful enough, will it stick? If I let you off easy, will you simply decide violating the law was worth it and do it again?
The factors relied upon to determine the amount of punishment that is imposed are the proportionality to the seriousness of the offense and whether you have a record of previous offenses. This isn’t about the community: it’s about how to make you conform your behavior.General Deterrence. The distributive criteria here is determining what will deter criminal activity from other people. This is a utilitarian principle. This is the “make an example of this one and the rest will fall in line” philosophy: how severe does the public penalty have to be in order to prevent other people from testing the limits? Public execution is a deterrent to others; Romans were known to crucify people in a public place with a sign that read off their crimes. Public whippings or hangings are another example. Nuclear weapons are a general deterrent on an international scale: go to war with us and we will utterly annihilate you with terrifying weapons of mass destruction.
The factors relied upon to determine the amount of punishment that is imposed are the proportionality to the seriousness of the offense, the publicity of the offense (increasing penalty as publicity increases), and the rate of capture (increasing penalty as capture rate decreases - throw the book at a harder to find crime.)
Studies mostly show that general deterrence doesn’t work for the most part. People with criminal thinking or addiction aren’t going to consider the potential consequences before engaging in criminal conduct. They don’t think that far in advance. Raising the fines doesn’t actually stop people from speeding. Increasingly harsh penalties for drunk driving hasn’t actually reduced the incidence rates and especially recidivism nearly as much as increased awareness and social change has.
Retributivism doesn’t actually care about getting people to conform their behavior in advance; it’s purely limited to after-the-fact punishment. The deterrence value isn’t really a consideration.
Rehabilitation could be viewed as a gentler form of specific deterrence, I suppose, and I found personally thinking first about rehabilitation and second about specific deterrence and incapacitation was my guiding star in thinking through “what is justice?”
This is hard. It’s complicated. And it’s not always clear how or even if these theories would lead to justice.
I view each of these theories really as a tool in the box about making a decision about justice. None of them are really right or wrong all the time.
One time, I had this woman who didn’t have a criminal record coming in but had a worrying trend of police interactions that just never quite made it to actual prosecution referrals. She took some nudes of who later became an ex-boyfriend and ran them around Facebook with some derogatory remarks about his… uh… measurements and stamina. It was a misdemeanor crime. I charged it.
I wasn’t sure if I should when it came in. If the gender roles had been reversed, though? If it was a man who had taken nudes of a passed out woman and posted them as revenge porn? Would I even hesitate? Of course not. I would want that conviction on the guy’s record so that people would know what he had done if they looked him up. That’s why I charged it.
She wanted to go to vet school. Her attorney argued bitterly to me that she’d never be able to get in if she had to report the conviction, and tried to argue that the offense was nothing. He demanded dismissal or a diversion agreement resulting in dismissal.
Rehabilitation wasn’t really an option for her. She wasn’t going to respond to some sort of programming or work with people who had been the victims of this kind of crime. She believed fully that she had done nothing wrong, and would not be swayed. Probation wouldn’t have done anything for her, or made the community safer. It wasn’t an offense that deserved jail, or a large fine: they wouldn’t have made a difference to her, nor would they make the community safer.
The mark on her record, having to admit to a judge what she’d done and her culpability, and then have it show up in the open records system was enough. It was time for her to have a conviction on her record, one that limited her in life, yes, but one that also would deter her from doing this again and make her specifically think twice.
I secured the conviction. I’m sure she thinks I ruined her life.
I had another woman who stole tens of thousands of dollars from her intellectually disabled friend. She had been given multiple chances in her criminal history and avoided convictions through prior diversion agreements.
Rehabilitation hadn’t worked. Specific deterrence hadn’t worked. It was time for more severe consequences for her. The victim wanted her to go to prison.
Justice required restitution, for one. And she wasn’t going to get that in prison even if I could talk the judge into it (which I was not confident I could). She needed monitoring as a form of incapacitation for her committing new crimes, and to be prohibited from positions of trust.
I made her plead to several felonies. She was working for a daycare at the time. She had a kid. You know how hard it is to get employment as a convicted felon just in general? You certainly won’t get most professional licenses, or likely hired in any positions where you have the potential to compromise sensitive information.
Oh, I’m sure she believes I ruined her life, too.
I had another guy who had racked up four drunk driving convictions about a decade before. He’d either done some treatment or got his life together, and managed to go a decent amount of time without another incident.
Until he came up to my county, got himself hammered, and went to Menards to pick up a load of building supplies for a cabin he was building for someone and got called in. He was pretty drunk; well above the legal limit.
And between his fourth offense and this one, the legistlature had passed a law making a fifth lifetime offense mandatory minimum prison of 18 months. The only exception was if the judge made a specific finding that the community would not be harmed by a reduced sentence and could justify going down to a year minimum.
His attorney wanted me to agree to recommend straight probation. I said absolutely not. His attorney fought me tooth and nail over the case and dragged it out for almost two and a half years. The guy went and did some treatment while it was pending. Community service. He got letters from a fiance about what a great step-dad he’d started being to her kid and other folks on his behalf.
I couldn’t justify agreeing to recommend going below the minimum (especially after he picked up a sixth offense a few counties south while the case was pending), but I offered to the guy’s attorney to plead and he could argue for that departure. Bitterly and at the last moment before a trial he surely would have lost, the guy and his attorney relented and took that agreement.
The judge gave him what I recommended. He went to prison for 18 months.
I’m sure he probably thinks I ruined his life, too.
Now, I didn’t ruin their lives. They broke the law. They shot themselves here; I just carried the bullet around for a while.
But I had to make the call. What consequences of their actions do they have to live with? What would be justice here? What does the law say is justice here? How severe is the crime? How significant is the harm? What does that call for to achieve the ends of justice?
I had excellent colleagues who I could talk through the merits of cases with, and who remain friends to this day. I trust their judgments and mentorship. They would help me go through the facts, and decide, is this one worth it?
And then I had to make that call.
So did the cop who referred it to me. And so did the judge who sentenced them. And sometimes the appellate judges who reviewed those convictions.
That’s what due process is. It’s a whole series of people making judgment calls.
We try to put into place some guiding principles, but at the end of the day, that’s what it boils down to: is this someone going out on a limb for? Or is this is a person who needs a consequence? Is the consequence recommended by the legislature appropriate? Or do I need to exercise some discretion here?
And as one of my mentors in the field would always ask me: Is the juice worth the squeeze?
I have no doubts that there are some pretty bad people who are in this country and shouldn’t be.
And deportation can be a tool in the box of how to deal with that.
That’s all it is: one tool.
The really bad guys, I would say probably deportation is a bad tool depending on what you wanted to have happen. Unless you knew they were going to be incarcerated in their home country, sticking them on a plane may well be just a detour to them on the way back in. If they committed imprisonable crimes here in the US, well, it’s probably a whole lot better for everyone to incarcerate them here where we know where they are.
People who were always going to be here temporarily, though? I could see there being a point to sending them back if they overstay their visa or commit a crime while they’re here.
But what does it get you with a Dreamer, though? What’s the point of deporting some 28 year old kid who was brought here as a toddler and can’t even speak Lubantu or Hatian Creole? They’re going to get killed if you ship them “home.”
What does it actually get you with a mother of three kids who is breastfeeding right now?
What does it get you with someone who has been here and contributing positively for thirty, thirty-five years?
Seriously.
Flights aren’t cheap. Jamming dozens of people on a plane costs tens of thousands of dollars every time. Or more.
Is the juice worth the squeeze here? If you believe that upholding immigration law is important, and your goal isn’t just whitening the US, is it worth it to go after people who have lived for decades in the US without causing problems?
Obama fashioned a different tool out of the limited options: he set up essentially a diversion program.
Keep your nose clean, contribute to the economy, pay your taxes, and stay on the government’s radar with routine check-ins, and you’ll be the last ones in the deportation line. Given the length of that line, you might never be a citizen if Congress doesn’t get around to fixing what is unquestionably a broken system, but probably you’ll never end up actually at the front of it at least. Break the rules, and to the front of the line you go.
That’s what DACA was. Deferred Action, for certain people who were brought here as kids and for most of whom the US was the only place they’d ever known as home.
But that all requires discretion. That requires good judgment. That requires you to look at the cases of the people that you have to make decisions about, and give them thought, and decide which ones aren’t a problem and which ones need to go.
Maybe the people making those decisions are racist or nationalist or both and have been hired specifically to make those decisions on certain criteria.
But it doesn’t have to take someone being racist or evil. If you’re a government immigration lawyer and now you have to process hundreds cases a week, you got time for that kind of thinking deeply about a case? You really got time to look at every file and do an analysis? If you’ve got to get through even just 40 cases a day, 200 per week8, that’s getting through one every twelve minutes. Every day. Not including court time.
You really have time to make the right call?
Sure is a lot easier to look at the surface and stamp “deport” on it and let it be someone else’s problem. Let the immigration judge make the call. Make them go to a district court and get a federal judge to take a habeas claim and make it a DOJ lawyer’s problem.
Especially when you have two kids and a mortgage and this government gig pays the bills, and you have a new DOJ or DHS supervisor breathing down your neck to do it or go find another job.
Sure is.
But is it justice?
You’ll have to make that call.
For now, because this administration has made it clear it wants to openly overturn the 14th Amendment and its longstanding, well-settled interpretation, through pure executive fiat, and start denying children born here citizenship.
Overstaying a visa and unauthorized entry are both civil offenses; they’re the Federal equivalent of a parking ticket or speeding. Repeated re-entry after deportation is a crime. You could, I suppose, use “illegal” in both senses, in that a car may be illegally parked or going illegally fast. But one certainly has a particular connotation with it and the other certainly does not.
I wrote about this in more detail back a few months ago.
For the uninitated, a gunner in law school is the person who usually sits right up front, tries to answer every question first, asks constant questions that derail the lecture by changing the hypotheticals that the professors use, and often show up wearing a full suit on the first day trying to impress the whole place. The want to be the class valedictorian and don’t care who they have to piss off to get there.
Given his Xitter posts, I’d put even money on JD Vance being one.
In three years, I did 63 bench trials on traffic stuff and county ordinance violations, and managed to go 61 for 63. One I lost because Super Trooper Bob couldn’t be bothered to comply with his subpoena and didn’t show up for the trial, and one I lost because I didn’t have the right foundational witness for some trail cam photos.
To be fair, everyone involved didn’t understand how limited the lines were, there was no memorandum of understanding with the city that granted them more jurisdiction or ability to back up local cops, and we had to go back in and dismiss dozens of cases that stemmed from all this. It was an insane headache and took me nearly a week to piece out and a month afterwards dealing with the fallout.
Deferred Judgment of Conviction. It was an agreement where they’d plead guilty to something, but the judge would withhold entry of the judgment of the conviction. They’d do certain conditions, which my office would monitor, and at the end of their term, something would happen. Sometimes it’d be amended charges, or dismissal. If they messed up, all I had to do was file a motion to revoke the agreement and the judgment of conviction would be entered.
Considering how many lawyers the government now seems to have these days and Stephen Miller pushing for 3,000 arrests per day, I’d say this is not an unrealistic number and frankly may be optimistic in some jurisdictions.