Precis

Précis: The Crimmigration Crisis
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Abstract
This précis analyzes the work of Stumpf J. on a possible crimmigration crisis. The merging of crime and immigration laws over the past decades presents the threat of a crisis. Immigration law violation was a civil matter, but over time it has come to be considered as a criminal act. Congress has made changes to immigration laws leading crimmigration laws. Cases of deportation were rare, but it has now become the norm for the immigration law offenders. Stumpf sees a possible crisis, through crimmigration laws the number of people alienated and excluded keeps increasing each day. This poses a danger since many businesses are affected; they cannot do business in the United States. Students have also been affected, opting to go to other countries. Courts and prisons in the country are becoming strained. Through the convergence of criminal and immigration laws, there is a lot of division between outsiders and insiders. The United States is alienating itself. Stumpf raises awareness on the issue and encourages other scholars to research on crimmigration laws. He also tries to explain why the two sets of laws have merged over time. He proposes a theory, the membership theory, to explain the emergence of crimmigration laws. The idea behind the theory is the need for people to emphasize the difference between insiders and outsiders. This has led to decision makers merging crime and immigration laws, aided by the Sovereign power available to them.

The paper is divided into two main parts; the first part looks at how the two sets of laws have merged. The second part looks at the role of the proposed theory in the emergence of crimmigration laws.
Précis: The Crimmigration Crisis
Stumpf’s article, “The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power” (2006) aims to explain why there has been increasing merging of criminal laws and immigration laws. He predicts a crisis in crimmigration laws, a convergence of crime and immigration laws; hence it is important for relevant policymakers and scholars to take note. To achieve the aim of his article, Stumpf proposes a theory, the membership theory. He provides illustrations, evidence and statistics to support his theory. According to Stumpf, the need to differentiate between insiders and outsiders (the membership theory) is responsible for the creation of crimmigration laws.
The first part of the article addresses how immigration law and criminal law have come to converge over the years. In the past, there was little connection between the two aspects of the law. However, over the years the two have converged to form crimmigration law. Stumpf explains how the purposes of the laws and similarities between the two laws aided in their convergence.
The purpose of criminal law is to protect members of society from evil motives, fraud, and violence. On the other hand, immigration law focuses on those eligible to cross the border and live in the United States. Both these areas of law differ from the other areas; most of the other areas focus on resolving conflicts among people and organizations. But for criminal and immigration laws, the primary concern is to regulate the relationship between individuals and organizations. Therefore, it was not surprising to Stumpf when legislators turned to criminal law to increase barriers to acquiring membership for noncitizens. Stumpf also discusses another similarity in the two laws; both laws aim to physically separate certain individuals from the US community.
Stumpf goes further to demonstrate the three platforms on which the convergence has occurred. First, the scope of the laws expanded hence they overlapped. Initially, immigration laws were about a civil process. The only overlap between immigration and criminal laws was denial of entry to those with criminal pasts. Cases of detention and deportation were rare then; even for those with criminal pasts found staying in the country illegally. However, over time the constitution has been amended to expand on the list of crimes. The definition of “aggravated felonies” has also been expanded with time to cover certain areas of immigration. This has led to increased cases of deportation. Immigration-related offenses that were considered civil offenses are now criminal offenses. Such offenses include; a noncitizen voting in a federal election, false claim of being a US citizen to enjoy government or for employment and marrying to escape immigration laws. Increased acts of terrorism have also caused an overlap between immigration and criminal laws. This is evidenced by the Department of Homeland Security making civil immigration warrant information accessible to local and state police departments through the national enforcement databases. The National Security Entry-Exit Registration System (NSEERS), initiated by the Department of Justice, made it a requirement to register noncitizen men from various Arab and Muslim countries.
Another cause for the convergence of the two areas of laws is transformation of immigration enforcement to parallel criminal law enforcement. Stumpf gives an illustration of the Border Patrol. Initially a group of sheriffs and local marshals, military men, 450 ranchers and railway mail clerks, according to Stumpf, has transformed to almost a police force.
Although the two areas of law have different constitutional protection to their proceedings, the outcomes have a resemblance. In both cases, the judge decides on whether to exclude an individual (or deport them in immigration proceedings).
The second part of the article focuses on the relationship between the membership theory and the crimmigration laws. Stumpf first analyzes the role of the theory in the convergence of the areas of law. Both criminal and immigration laws are gatekeepers of membership in the community, according to Stumpf. This is possible through acts of deportation and incarceration. The idea behind the membership theory is that a group of people in society (in a social contract with the government) can enjoy certain rights. Those not included involved in the contract are denied such rights. There are various categories of constitutional rights, some enjoyed by a certain group of people. Immigration and criminal laws exclude individuals from such a group. There are clear ways of gaining membership through immigration laws; the first one has to become a permanent resident then he/she becomes a US citizen; after meeting certain requirements. On the other hand, criminal laws take away membership by removing certain rights from an individual’s citizenship. These individuals must have committed serious offenses. In criminal law, US citizens enjoy all membership rights. It is upon the US government to show that does not deserve to enjoy such rights. In immigration law, individuals are assumed to be nonmembers. It is, therefore, upon them to show beyond any doubt that they deserve membership.
Stumpf also analyzes the means through which both criminal and immigration laws have evolved to form the new crimmigration laws. Stumpf argues that incorporation of criminal laws into immigration laws coincided with the shift from a rehabilitation model to a punishment model of the criminal penology. Stumpf illustrates the relationship between immigration laws and penology. In the 1950s and 1970s, sanctions from both immigration and criminal sectors were aimed to rehabilitate the offenders. After the 1970s, criminal penology now aimed to punish offenders and strip them of some rights. According to Stumpf, immigration laws are now making the same changes. Initially, immigrants who committed crimes were normally handled by the criminal justice system. The situation was handled like a domestic affair. Nowadays, such situations are treated as immigration matters with most offenders getting deported even for minor offenses.
Through the Sovereign power, a common basis of policymaking for both immigration and criminal laws provided more means for the formation of crimmigration laws. The application of same theories and legal tools brought the once distant areas of laws close together. Immigration laws always relied upon the Sovereign power. And as criminal laws adopted a punishment approach rather than rehabilitating offenders, they embraced Sovereign power to address increasing rates of crimes and inflict harsher punishments. Through Sovereign power, immigration laws can exclude an individual from the US borders. Immigration laws ability to use Sovereign powers has led to increased cases of deportation.
The article increases awareness of crimmigration laws which are a result of convergence of criminal and immigration laws. Stumpf analyzes how the two sets of laws have come to merge over time, having a negative impact on the country. He proposes a theory, the membership theory, he claims is responsible for the merger of immigration and criminal laws. Little has been written on why the merger has happened; it is therefore important for scholars to conduct more research on the issue.
Reference
Stumpf, J. (2006). The crimmigration crisis: immigrants, crime and sovereign power. American University Law Review, 56(2), 367-41