Daniel Kanstroom

Deportation, Social Control, and Punishment: Some Thoughts about Why Hard Laws Make Bad Cases

From the Authors Introduction: We live in a time of unusual vigor, efficiency, and strictness in the deportation of long-term permanent resident aliens convicted of crimes. This situation is the result of some fifteen years of relatively sustained attention to this issue, which culminated in two exceptionally harsh laws: the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In many cases, these laws have brought about a rather complete convergence between the criminal justice and deportation systems. Deportation is now often a virtually automatic consequence of criminal conviction. This convergence, and the harshness of these laws - their retroactivity, their use of mandatory detention, the automatic and often disproportionate nature of the deportation sanction, and the lack of statues of limitation - raise two related questions: First, why are we doing this? Second, what could be the consequences of this approach for the constitutional legitimacy of deportation proceedings?

Human Rights for All is Better Than Citizenship Rights for Some

The best way to avoid The calamities of the rightless for whom no law exists (Arendt) is not only to strengthen citizenship protections. That may well have the perverse consequences of, on the one hand, rendering citizenship ever harder to achieve, and on the other, relegating noncitizens to an increasingly rightless realm. We must do the harder, more basic work of defining and instantiating meaningful human rights protections for all people, regardless of status, or location. Focusing too specifically on the problem of deprivation of citizenship must not blind us ‘to the numerous small and not so small evils with which the road to hell is paved.’