Harvard Law & Policy Review

Archives for July 2018

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Plea Bargaining: Lessons Learned, Issues Outstanding

By Milton Heumann*

 

The classic “you’ve come a long way baby” mantra from the world of tobacco advertising has an analogous application to plea bargaining. Fifty years or so ago, plea bargaining was just emerging from the shadows of the perception of our trial courts, but today it is recognized as occupying the central position in understanding the ways justice is allocated. The final acknowledgment of the “long way” plea bargaining has come came bluntly in the Supreme Court’s 2012 decision in Missouri v. Frye[1] in which Justice Kennedy, writing for the majority, quotes a prominent law review article which concluded that “[Plea bargaining] is not some adjunct to the criminal justice system; it is the criminal justice system.”[2] Recognizing the centrality of plea bargaining, though, still leaves to be explored a host of policies and practices associated with plea bargaining

 

“GRIDTU”: Going Rates, Informing Defendants, and Tackling Unfairness

I address three of these issues: “going rates” in the courts, informing defendants about the implications of their pleas, and tackling unfairness in the plea bargaining process (conveniently summarized in the GRIDTU acronym). The “going rate” section is less a Court-or policy-driven set of observations than it is something that emerges from social science research, and which in turn invites more social science research and also carries significant implications for sentencing reform; the “informing” section emerges from three relatively recent Supreme Court cases,[3] and has important possible consequences for the plea bargaining process; and the “tackling unfairness” section is obviously broader than the first two, and would take volumes to discuss in any systematic way. Instead I use this third section to propose several reforms to the plea bargaining system going forward.

 

GR: Going Rates

Often, the bottom line of the plea bargaining process – that is, the specific sentence the defendant receives[4] – is overlooked. When one examines the pleas received for similar sentences across jurisdictions, it becomes clear that no one “price” is right for any particular crime. This fact means that “the number” – the sentence – is not linked in any direct or validated way to any of the many goals of the criminal justice system. Most studies of sentence length show no deterrent effect for lengthening sentencing, though they do occasionally show some modest effects for speed, certainty of sentence, and a partial benefit for incapacitation.[5] If these sentences do not aid in deterrence, it is hard to pinpoint, other than for normative reasons, why any one specific sentence for a crime should be valued over another.

So where do these sentences come from? The basic answer is no one knows. As frustrating as that might seem, the “going rates” for crimes seem to exist simply because that’s what they always were. In recent years, with the growing efforts to regularize sentencing with various forms of sentencing guidelines, many attempts at reforming sentences have been made, mostly based on prior record and the nature of the crime. But even with the appearance of rigor engendered by the guideline or determinant sentencing numbers, there really is very little of a validated link between any of the “going rates” and the goals of the criminal justice system. In short, no price, or sentence, is naturally right or wrong.

Further, Professor John Pfaff of Fordham Law School recently argued in a provocative summary of the current state of the criminal justice system that for prosecutors to address the “mass incarceration” problem in our society, there needs to be a change in the “price” of offenses for many categories of crime (and not just for often singled out “low hanging fruit” of drug cases).[6]  Can this be done? Sure.  But though this can begin by changing many rigid guidelines and mandatory sentences, more importantly, what remains clear is that prosecutorial discretion has important implications for what the “going rates” are. These “rates” are not set in stone, have no necessary public policy benefits, and can be changed at the discretion of prosecutors across the country.[7]

 

ID: Informing Defendants

In Padilla v. Kentucky, the Supreme Court ruled that failure of a defense attorney to inform a client that a collateral consequence of their felony plea could lead to the client’s (in this case, a forty-year permanent resident in the United States) deportation constituted deficient performance by the attorney.[8] Two years later, in Missouri v. Frye [9] and Lafler v. Cooper, [10] the Court went further and ruled that failure of an attorney to tell a client about plea offers made by a prosecutor, or failure of the attorney to adequately explain the way a plea could affect a judge’s sentence, constituted ineffective assistance of counsel. These cases indicate certain expectations of attorney performance in plea negotiations, particularly with the duties of attorneys to inform their clients of the possible implications of plea bargains as spelled out in Padilla.

Padilla recognized that a client had a right to be explicitly informed that that deportation was a possible collateral consequence of his plea. What remains unexplored are what the other kinds of collateral consequences that a defense attorney should be required to disclose during plea negotiations are. Should an attorney be required to inform a defendant about the effects of the plea on the defendant’s eligibility to vote in the future? Or the defendant’s eligibility to qualify for government loans, student financial aid, and employment opportunities? There is a vast recent literature on the collateral consequences of felony sentences,[11] and it is hugely important to continue to explore said consequences and whether defendant’s have a right to be informed of them before taking any guilty plea.

Two personal examples illuminate the importance that explaining collateral consequences could have on individual decisions and on an individual’s sense of fair play. In my counseling of pre-law students, I invariably speak with a few students every year who have had prior (usually minor) convictions in criminal court, most commonly for marijuana offenses. Almost without exception they were never told the implications of their pleas for subsequent stages in their lives. Suddenly, though, questions about prior criminal activity appearing on the law school applications send shock waves through these students – especially in how the convictions could affect admission to law schools and the bar. Similarly, and closer to home, last year I received a minor moving traffic citation, one which carried several “points” to be put on my license and these points almost always increased insurance premium payments. At court, I was accompanied by an attorney, and as is characteristic of these traffic courts he was able to, in exchange for my plea, obtain a charge which carried no “points.”  Surprisingly, though, when I received my insurance premium notice for the following year, I learned that despite the plea, my premium would still be increased. Like my students, and the obviously much more impactful case of a defendant facing deportation, I was never informed about the collateral consequence of my plea.

Obviously, there are a host of questions that follow from this cursory discussion about informing defendants about collateral consequences of pleas. How might providing this information affect decisions to plead? Should they? What collateral consequences (in addition to effects on immigration status) should the Court insist upon an attorney informing clients? How important is informing (or not informing) a client about collateral consequences on the client’s lessons about “procedural justice” in the resolution of his case?[12] These questions form the frontier of further assessments of plea bargaining collateral consequences that Padilla first established, but by no means settled.

 

TU: Tackling Unfairness

Many of the reforms I’ve suggested, especially when it comes to greater judicial involvement in plea bargaining, have been suggested in the past.[13] However, there has been little discussion about the implications Padilla has had in introducing a new facet of criminal law. In his scathing dissents in Lafler, Justice Antonin Scalia noted that “the Court today opens a whole new field of constitutionalized criminal procedure: plea-bargaining law.”[14] Scalia may have been correct in his prediction, but it is not clear why this would be a bad thing. As then-Professor Stephanos Bibas responded to Scalia’s lament: “[I]t is about time the Court developed some plea-bargaining law.”[15]

Ultimately, further developments in plea bargaining law may come from outside the judiciary. The recent election of Larry Krasner, a former civil rights attorney, as the District Attorney in Philadelphia might foreshadow the most interesting plea bargaining reforms of all. Krasner is not the only prosecutor recommending significant changes, but few come with Krasner’s top-to-bottom reformist bent. Of course, only time will tell how consequential these changes are, but it would be hard to go beyond the range of reforms Krasner is attempting. Specifically, Krasner has instructed his deputies to stop negotiating plea bargains to get the highest possible sentencing and instead focus on lighter punishments, including offering house arrest or diversion as alternatives to incarceration. Other intriguing changes include eliminating cash bail for low-level offenders who would otherwise just accept a plea bargain just to “get it over with” and get out of jail, and outright dismissals of many marijuana arrests. But perhaps the most interesting of his proposals is to have his prosecutors inform of the judge of the cost of the sentence the prosecutor recommends. Krasner’s office estimates that it costs $115 daily to house someone in prison, or $42,000 per year. He wants prosecutors and judges to know this, and explicitly acknowledge the potential costs when they suggest sentences. How this information will affect their decisions without imposing a cap on how much they can “spend” in any given time period is a matter that awaits careful research in the years ahead.[16] Collectively, the Philadelphia experiment is an important case study of how more than piecemeal change in plea bargaining practices might be effectuated.

 

Conclusion

Plea bargaining, including plea bargaining law, has emerged as a central piece of understanding prosecutorial outcomes. But this understanding means little if it is not paired with an appreciation of the sentences that the plea bargaining machine currently produces. Plea bargained sentences can most definitely be associated with mass incarcerations, though as argued above, these could just as well be associated with dramatic decreases in incarcerations. Other implications of plea bargaining that also need to be considered include concerns about the collateral consequences suffered by the millions who acquiesced to having criminal records by accepting a plea deal. Defense attorneys must be required to advise their clients of these collateral consequences of pleas as a component of “effective assistance of counsel” in plea presentations to clients.

These are exciting times to be revisiting prosecutorial plea bargaining behavior. The federal level has seen a dramatic switch from Eric Holder’s reform-minded policies recommending lower sentences to Jeff Sessions’ insistence that U.S. Attorneys push for the harshest sentences possible The current federal approach stands in sharp contrast to some reforms on the local level, particularly with the innovative reforms in plea practices and prosecutorial posture being championed in Philadelphia. Liberal reformers might conclude that it is the best of times in a place like Philadelphia while simultaneously being the worst of times at the federal level. What we learn by systematic empirical studies of these changes – and not simply from fanciful rhetoric bemoaning or touting policy changes – will contribute to our growing understanding of what and how criminal case processing practices can be reformed and contribute to enlightened goals for the criminal justice system.

 

[1] 566 U.S. 134 (2012).

[2] Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992).

[3] See, e.g., Missouri v. Frye, 566 U.S. 134; Lafler v. Cooper, 566 U.S. 156 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010).

[4] Of course, there are other important outcomes of the plea process as well – dismissals, diversionary sentences, etc. Here, however, we will just discuss sentencing outcomes.

[5] See Nat’l Research Council, Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates (Alfred Blumstein, et al. eds., 1978). See also David Roodman, The Impacts of Incarceration on Crime (Open Philanthropy Project, 2017).

[6] See John F. Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform 31–36 (2017).

[7] Trying to understand “going rates” implicates a complex mélange of factors. To name just a few, legislative prescriptions, “WillieHorton” concerns, jail capacity, jurisdictional tradition, all combined in interesting, intriguing, and difficult to unpackage ways to contribute to local “going rates”. See id. at 51–77, 127–59

[8] 559 U.S. 356 (2012).

[9] See 566 U.S. 134.

[10] See 566 U.S. 156.

[11] See, e.g., James B. Jacobs, The Eternal Criminal Record (2015); Invisible Punishment: The Collateral Consequences of Mass Imprisonment (Marc Mauer et al. eds., 2002).

[12] For an excellent general discussion on procedural justice, see Tom R. Tyler, Why People Obey the Law: Procedural Justice, Legitimacy, and Compliance (2006).

[13] See, e.g., Albert Alschuler, Lafler and Frye: Two Small Band-Aids for a Festering Wound, 51 Duq. L. Rev. 707 (2013); Susan R. Klein, Monitoring the Plea Process, 51 Duq. L. Rev. 559 (2013); Russell D. Covey, Plea Bargaining after Lafler and Frye, 51 Duq. L. Rev. 595 (2013).

[14] Lafler, 566 U.S. 156 at 175 (Scalia, J., dissenting).

[15] Stephanos Bibas, Taming Negotiated Justice, 122 Yale. L.J. Online 35, 35 (2013).

[16] Putting a cap on how much can be “spent” on sentences in a year by a prosecutor or a judge necessarily forces hard choices about who gets which sentence. This is reminiscent of the calculations necessitated by comparably putting a cap on criminal sentences based on prison capacity. For an excellent discussion of how prison capacity can affect sentence length, see Dale G. Parent, Structuring Criminal Sentences (Daniel J. Freed, ed., 1988).

 

*Milton Heumann is a Distinguished Professor of Political Science at Rutgers University. The author would like to thank Anu Chugh, a rising senior at Rutgers University, for her invaluable research assistance on this article.

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Fighting to Restore Civil Rights and Felon Rehabilitation in Florida

By Eric Allen Kauk*

This November Florida will vote on Amendment 4, a measure that would automatically restore the right to vote to 1,487,847 convicted felons who have successfully served their entire sentence and paid their debt to society.

Florida lags far behind the rest of the country when it comes to restoring individuals’ civil rights. In 2016, more Floridians had lost their civil rights due to prior convictions than citizens in any other state.  Florida disenfranchises more people than Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee combined.  A full 10.43 percent of the total population of the State of Florida is disenfranchised.

Reconstruction era legislative history suggests that these restrictions on voting rights were one way the governing class intended to silence the voice of recently-freed slaves.  Today, many question the racial, socio-economic and political undercurrents that keep these draconian shackles tightly locked in place in 2018.  Consider that Florida is home to 418,224 voting-age African Americans who have completely served their sentences but whose right to vote has not been restored. This is 21.35 percent of all African Americans in the state: a total that accounts for more votes than the margin of victory in Florida for any Presidential election since 1988.  If re-engaged, these voters could change national election outcomes. Perhaps this is one reason they have not been re-engaged.

Convicted felons face limitations on the types of employment they can pursue.  While the right to vote is fundamental to our identity as a free, democratic nation, the right to seek employment of our own choosing is also at the core of our individual liberty. Each employment choice that is eliminated blocks a person’s freedom. To be banned from one profession forces a person into another, and forced labor is abhorrent. The “American dream” is the promise that you can overcome your past through hard work, education and persistence to achieve your own goals, regardless of your background, race or heritage.  But this American dream is a nightmare for a convicted felon in Florida.

In Florida, executive clemency (which restores the civil rights of the individual to pre-conviction status) is incredibly hard to get and it doesn’t solve the problem.  Just to be eligible to apply for any form of executive clemency in Florida, a person must have completed all sentences, paid all fines, costs, and victim restitution, plus all conditions of supervision (parole, probation, etc.) must be completed for a period of at least 7 years prior to the application.  Once the application is submitted, the Parole Commission completes an extensive investigation of the applicant’s life, then gives a non-binding recommendation to the Clemency Board.  The Clemency Board, comprised of the Governor and two of his chosen cabinet members, then decides to grant or deny clemency.  Under Governor Rick Scott, that choice has overwhelmingly been to deny applications.

Despite Florida having the nation’s largest unrestored population, Governor Scott has restored exceptionally few individual’s civil rights. In 2011, under Governor Scott, just 52 applicants were granted clemency. In 2012-2015 only 342, 569, 562 and 427 individuals were granted clemency in respective years.  In a state where almost 1.5 million individuals have wholly-served their sentence and await restoration of their basic civil rights, it is a travesty of justice that the Governor has restored the rights of less than 3,000 individuals total since he took office.

Under Scott, the process is also incredibly slow.  As of June 30, 2017, the number of clemency applications that sat waiting for review was 22,126. Considering that the Clemency Board hears an average of 52 cases per quarter, it would take the Clemency Board more than 50 years just to hear the applications that have already been filed.

This long and arduous clemency process in Florida triggered a class-action lawsuit seeking to automatically restore former felons’ voting rights.  James Michael Hand, et al. v. Rick Scott contends that the clemency process in Florida lacks rules, which makes the system and applicants prone to arbitrary treatment by the Executive, violating the 1st and 14th Amendments to the U.S. Constitution.  Voting rights advocates say that the system lacks rules, or guidelines and leads to similarly-situated individuals being treated differently.

The Executive does not dispute the charge that they hold all the cards. Governor Rick Scott spoke at a December 2016 Cabinet meeting, claiming “Clemency is . . . is — there’s no standard. We can do whatever we want.” The Executive is not even required to explain a decision to deny clemency when an applicant may be eligible. A denied applicant is informed of the denial, but is never told the reason for the denial, and that reason is not recorded.

Governor Scott’s completely free reign over clemency proceedings seemed to irritate U.S. District Judge Mark Walker, who declared the system “fatally flawed” and unconstitutionally arbitrary in a strongly-worded March 27th District Court opinion. He ordered the Executive to put a new system in place by April 26, 2018. Walker ordered Scott to implement “specific standards and neutral criteria” to the clemency process. While it may seem reasonable to ask the Clemency Board to outline neutral standards by which they will grant or deny clemency, the issue is far from settled.  On April 25th, 2018, a three-judge panel of the U.S. Circuit Court of Appeals in Atlanta issued a stay of Judge Walker’s March 27 order.  The issue seems destined for further appeal, and many believe the case will rise to the Supreme Court of the United States.

Even if an individual somehow weathers this controversial process, and is granted executive clemency, he still has an uphill battle if he wishes to practice in a profession that requires licensure by a Florida state agency. State agencies can wrongly apply professional licensure restrictions to create difficult hurdles for restored individuals.

A review of the Florida Administrative Code shows more than 70 different professions, from which felons are barred.  Even citizens who have had their rights restored by the Governor himself, must battle state agencies if they wish to pursue life, liberty and happiness in a profession like mortgage counselor, criminal justice training instructor, lobbyist, blood alcohol analyst, community association manager, physician assistant, preneed funeral sales agent, bail bond agent, insurance agent, and even firefighter.

My personal experience has provided me with an intimate understanding of the specific challenges that restored individuals face.  In Kauk v. Department of Financial Services, the Department denied me, a restored felon, a license to sell life and health insurance. I first pursued the administrative appeal process. The Department’s own administrative hearing officer recommended approval of my license application, and supported his recommendation with the following findings of fact:

“The undisputed competent evidence, including the circumstances surrounding the Petitioner’s prior conviction and the undisputed evidence of his full and complete rehabilitation, show that the Petitioner currently conforms his behavior to societal norms, possesses good moral character, and is otherwise morally fit to serve as a residential life with variable annuity and health insurance agent in the State of Florida.”

In its final order, the Department accepted the hearing officer’s findings, in full, while rejecting his conclusions of law, and subsequently denied the license.  I was devastated.  Only with the strong support and encouragement of my good friend Dean Burri, Esq. did I appeal.  Thankfully, I did, because the Florida First District Court of Appeals reversed the application denial and remanded the issue back to the Department of Financial Services. But, the Department wasn’t ready to give up.  The Department appealed to the Supreme Court of Florida. The week I settled with the Department, the Supreme Court of Florida determined that it should decline to accept jurisdiction, ordered the petition for review denied, stated that no motion for rehearing would be entertained.  While my application was finally approved, the fight was damaging.

When the Department of Financial Services interpreted and applied to my application a statute that the legislature intended for convicted and unrestored felons, the Department caused significant collateral damage.  The delay in time between application and ultimate resolution of the issue was costly in the form of lost income. The cost of litigation was exorbitant, and the notoriety of the case caused great public awareness of the underlying criminal conviction. Something that was publicly embarrassing.  These are substantial deterrents to an applicant who simply wants to pursue a career.

The deterrent effect that a state agency creates with its interpretation and application of these statutes to a restored individual counteracts justice. When the state creates obstacles like this it deters the restored individual from standing up for their fully-restored rights. As a society we have worked to eliminate obstacles that deter an individual from accessing their constitutional rights. In my own rehabilitation journey, I was directly helped by literally hundreds of people along the way.  State agencies should not be allowed to restrict and deter access to justice, nor should they effectuate the denial of civil rights.  When they do they send a clear message that criminal rehabilitation is a false narrative. And they disregard all the efforts of all the people who have worked for years to support and encourage that felon’s rehabilitation process.

If civil rights are meaningful, and if full rehabilitation is something society wants felons to be committed to, then we must honor the civil rights of a rehabilitated individual to vote and to pursue licensed professions, with as few restrictions as possible.

 

*Eric Allen Kauk is the Plaintiff in Kauk v. Dep’t of Fin. Servs., 131 So.3d 805, 808 (Fla. 1st DCA 2014); cert. denied., a fully restored individual, and is in his second-year at Stetson University College of Law.  He can be reached at ekauk@law.stetson.edu

 

The featured image for this post is from Democracy Chronicles.

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Trump’s Flailing Ratchet: From “Bad Hombres” to “Zero Tolerance”

By Amien Kacou*

The Trump administration has made fighting illegal immigration a top law enforcement priority. But, despite the President’s frequent displays of availability bias—if not vicious cynicism—on this issue, it is well-established that immigrants, regardless of legal status or origins, are on average less likely than citizens to commit most crimes. In fact, their presence usually translates to an overall reduction of crime rates in areas where they settle.

Likewise, at the border, though the President conflates all unauthorized entrants with so-called “bad hombres,” his Chief of Staff admits, “the vast majority of the people that move illegally into the United States are not bad people. They’re not criminals. They’re not MS-13.” A minority of unauthorized immigrants still employs human smugglers (partly due to the dearth of legal admission options for asylum seekers, and perhaps soon due to people getting turned away at ports of entry). But we ought not also conflate these smugglers with more functionally violent foreign actors (gangs, terrorists, or human and drug traffickers—keeping in mind that we are dealing, in the first three cases at least, with low range or low frequency threats and ought not be fooled, as a result, into the irrational urge to police “unknown unknowns”).

Attorney General Jeff Sessions may be as pious as President Trump seems wanton in their joint infliction of extremely severe penalties—at almost any price—on unauthorized immigrants, supposedly as necessary to protect the rule of law and prevent an invasion through “open borders,” even if we are nowhere near historic levels of unauthorized immigration. Sober experience and basic logic counsel against such false choices—or slippery-slope fallacies. This country has had a solid tradition of immigrant legalizations, none of which ever triggered a crime wave or public disorder of any sort. On the contrary, our last mass legalization led to further decrease in crime. Critics will retort that repeated legalizations hinder the rule of law at some fundamental level. But the time when Congress needs to reassess the soundness and equity of its laws is not a question of abstract principle; it is ultimately a question of circumstance, including the tragic mismatch between past laws and emerging realities—as sometimes reflected in public opinion.

Besides, there are good, concrete reasons why strict enforcement of the laws is not always the norm. Speed limit enforcement, for instance, is famously non-legalistic (even though speeding kills tens of thousands of people every year). This reflects the fact that, in practice, “law and order” must bend not only to a higher law of scarce administrative resources but also to a higher order of political priorities—if not directly to advance community values, then at least to avoid counterproductive outcomes. Indeed, myopically stringent border and deportation policies of the past and present have produced negative externalities on anti-drug and anti-gang efforts (later cited to justify more deportations and border controls, in a vicious circle). They have also triggered a backlash against their abject, immoral, illegitimate cruelty, from both the public and civil or other political institutions—including courts. Not to mention the community-oriented local law enforcement authorities who, for the same and other pragmatic reasons, have withdrawn their cooperation from federal immigration enforcement activities, in a significant setback to the President’s agenda.

Maybe, despite these facts, the policy case for aggressive immigration enforcement would carry some weight if immigration itself were reasonably presumed to pose some threat to the public—if it carried an inherently dangerous seed, albeit one somehow deeply buried in data noise. For example, imagine population growth held a simple, positive linear relationship with increases in crime. In reality, it does not; but the Trump administration’s immigration policies typically seem to sprout from similar zero-sum axioms (notwithstanding the President and his allies’ surreal personal double-standards). This is manifestly what drives its officials’ legislative proposals to restrict legal immigration in order to restore some imaginary demographic balance, as a “corrective . . . to the lenient policies of the past.” The same can be said of their decision to purge once-celebrated national slogans of immigrant inclusivity, allegedly in order to reaffirm the government’s “commitment . . . to the American people;” or of their willingness to recycle classic fallacies of job scarcity, while “pulling an ‘All Lives Matter’ on DREAMers.”

Repeating “every life matters” (really to say that every citizen’s life matters more) is one slick way Trump allies concoct a convenient moral alibi for peddling clearly false public safety arguments in support of harsh immigration enforcement policies. With this, they aim, crucially, to shift the burden of proof to their critics’ patriotism for failing to rage against any contribution—however accidental—unauthorized immigration might make to any citizen ever getting harmed. Here, it becomes crucial that, “but for“ an unauthorized immigrant’s unlawful presence (or for the support of his or her political “enablers”), any harm he or she causes would likely not have occurred. Immigration hardliners purport to find this contingency so intolerable that it eclipses in their minds virtually all other relevant considerations. Or, as former Trump campaign adviser Roger Stone put it, with more panache: “If one illegal immigrant kills one American citizen, then the system has failed.”

Never mind that “but for” causation is a notoriously deficient, misleading criterion for assigning fault. An intending immigrant’s presence in the U.S., in and of itself, is not a characteristic or otherwise foreseeable factor of homicide. And the fact that such presence is in violation of U.S. immigration laws is essentially coincidental. Imagine, by analogy, that Jill murdered Jack after driving nonstop to the location of her violent crime on an expired license or registration (which, like unlawful presence, is a civil administrative violation), or even on a fake license or registration (a more serious crime in many states than the petty misdemeanor of first illegal entry). Would it not seem odd for a politician to initiate a crackdown on expired/fake licenses or registrations by asking us to remember this event? If so, why does it not seem similarly absurd to blame illegal immigration for sporadic unauthorized immigrant crimes?

There is no debate that our government should prioritize our safety and welfare in at least some ways. (We are entitled to some sense of ownership over our country—whether for our past contributions to its assets, for our psychological association with its history, symbols and folklore, or even for the unearned windfall of the accidents of our births and social trajectories in it.) This changes nothing to the fact that even citizenism has moral limits—immigrants, too, have rights; immigration law could never be legitimate if they did not. Indeed, international law protects asylum seekers from refoulement, and the U.S. constitution demands due process in immigration proceedings while guaranteeing equal protection of the laws to all persons in the United States. Federal judges do retain an institutional bias—a rigid conception of national sovereignty—which all-too-often favors sparing the political branches from any meaningful scrutiny over their interpretation and regulation of those requirements. But this tendency is mitigated by other doctrines, such as the “longstanding principle” to resolve persistent ambiguities of immigration laws in favor of immigrants.

Trumpism’s wicked appeal, however, comes precisely from its ever-daring, corrosive rationalization for rejecting those basic principles of justice for all, fueled by ever more bad faith (including officials’ increasingly blatant distortions of relevant facts) and ruthlessness in all areas of immigration policy. From the President profiling and dehumanizing unaccompanied migrant teens in his speeches (with the moral alibi of “honest” inarticulateness or political incorrectness), to his agency heads ordering their officers to forcefully seize young accompanied migrant children from their parents in order to deter unauthorized family entries, without plans to reunite them. One moment, those same agency heads are grabbing adjudicating officers in their ranks, as well as heads of local governments, by their respective organizational collars, threatening the first with retaliatory dismissals and the second with criminal prosecutions if they fail to lend a hand in the President’s efforts to reduce access to asylum and immigration of any kind (by arbitrary means if necessary). The next moment, the President is calling for a policy of instant deportations of all undocumented persons at the border “with no Judges or Court Cases.”

As it often has, racial bias—whether overt, concealed, or ironicized—provides a deeply plausible complementary explanation for why Trumpists find in the field of immigration such free and fertile ground to give substance to their quarrelsome, offensive politics (where “zero tolerance”—extreme intolerance—is the ideal culmination of an escalating process of strategic field polarization). But hijacking the presumed privileges of citizenship attracts a larger range of voters and is less obviously objectionable than directly going to bat for White privilege; so long as patriotism remains “gospel,” so to speak, many people will remain vulnerable to erring from citizenism (“citizens first”) to zero-sumism (“only citizen lives matter”).

Roger Stone’s apocalyptic take on rare incidents of unauthorized immigrants killing citizens illustrates the perverse interaction between these various types of social—or antisocial—bias. It contrasts notably with the way he downplays (like former Trump strategist Steve Bannon) White supremacists as a mere aberration, a virtually nonexistent threat, despite Dylan Roof and, later, Charlottesville. Stone suggests this discriminatory treatment (supporting a collective crackdown on unauthorized immigrants for harms caused by a minority among them, while treating violent White supremacists as outliers) is justified by comparing the two groups’ crime volumes. Yet this suggestion is nonsensical, since both populations are clearly incommensurate with one another, in terms of both membership numbers and elementary facts of moral decency. (We ought not to have to spell out the latter: the vast majority of unauthorized immigrants breaks immigration laws to join their families, find jobs, or request humanitarian protection; the totality of White supremacists, by definition, seeks the subjugation, cleansing, or annihilation, of their fellow human beings.)

Above all, this form of thinking is self-fulfilling; it encourages further criminalizing immigration. In fact, since at least the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, U.S. immigration has become hyper-criminalized. Not only has the range of minor crimes for which legal immigrants can be deported been expanded; relatively benign violations like illegal entry are now being criminally prosecuted with brutal disregard to the circumstances of and the consequences to the defendants and their families. In addition, immigration authorities routinely tag the “criminal alien” trope on unauthorized immigrants who are simply arrested but have not been convicted of any crime. And criminal enforcement tools are being turned on civil immigration violators without also granting them the statutes of limitations, procedural benefits and rehabilitative or restorative opportunities which actual violent offenders are normally—and appropriately—afforded.

But perhaps this administration’s increasingly spectacular abuses of power—whether mitigated or aggravated by its ineptitude—might trigger just enough backlash to inspire a legislative re-decriminalization of irregular border crossings, especially by asylum seekers (who, after all, are fleeing persecution by the most rudimentary means, not leisurely touring their way to the nearest port of entry). At a more nuanced level, there might be no better time to reexamine the unquestioned policy presuppositions that supported the last legislative push for “crimmigration”—like the notion that public safety is well-served by deporting most categories of immigrants who have been convicted of serious crimes but have purged their full criminal sentences or been out on probation. Specifically, the outrageous success of Trumpism might, counterintuitively, justify asking again when deporting people to avoid the potential social risks and costs of reinsertion or of failed rehabilitation, for example, is really a legitimate consequence of their lacking the acceptable privileges of citizenship.

More fundamentally, fighting the spread and escalation of Trump’s particular strain of aggrieved anti-immigrant prejudice, on all fronts, will require not merely citing data and exposing purported policy rationales (like “public safety”) as pretexts, but also offering a rejuvenated pro-immigrant counternarrative. Perhaps we need a new ideology, interweaving a reaffirmation of the American constitutional creed with a deeper recognition of the nature of immigration, broadly construed, as an a priori prosocial act (quite unlike the acts underlying prototypical crimes like killing and stealing, which are facially antisocial—though they may be judged otherwise under mitigating circumstances). While acknowledging the need for maintaining order in foreign entries and immigration (for mostly practical, procedural purposes), we also need to promote a stronger sense of what makes empathy with irregular migrants possible (and, eventually, just): the recognition that they are, at bottom, on a largely desperate quest for social integration—at yet another point in this country’s long and uneven history of civil rights.

*Amien Kacou is a Staff Attorney at the American Civil Liberties Union of Florida focusing on immigrants’ rights.