Alienating criminal procedure

• Author: Amy F. Kimpel
• Position: Associate Professor of Clinical Legal Instruction, University of Alabama School of Law
• Pages: 237-289

ALIENATING CRIMINAL PROCEDURE

AMY F. KIMPEL*

ABSTRACT

The paradigmatic federal criminal case is not the prosecution of Elizabeth

Holmes or John Gotti, but rather that of a poor immigrant of color for a low-

level border offense. There persists a perception that federal criminal court

is reserved for complex crimes that require robust resources to prosecute and

defend. These resources are said to fund procedural rigor and afford

a dig-

nity to the proceedings that state courts cannot match. If this mythologized

federal criminal court ever existed, it no longer does. Immigration cases

overwhelm the federal criminal docket, making up more than half of all filed

cases. The majority of those recently prosecuted in federal court are nonciti-

zens, most of whom are Latinx. The changed composition of the docket has a

profound impact on the operation of the federal criminal courts. Those

charged with federal immigration crimes are canaries in the proverbial coal

mine, and federal immigration prosecutions are an underexamined driver of

the racialized phenomenon of mass incarceration.

This Article argues that immigration cases have remade federal criminal

procedure to the detriment of citizen and noncitizen defendants alike.

“Operation Streamline” prosecutions, where dozens charged with misde-

meanor immigration crimes are counseled, plead guilty, and sentenced in

mass proceedings, are now a frequent feature of federal criminal practice.

The expedited procedures refined in Streamline migrated from the low-level

immigration cases for which they were designed and now feature in gang and

drug trafficking cases far from the Southern border. A right that is diminished

due to the executive’s plenary power over immigration and the border is a

right that remains diminished for us all. For example, Fourth Amendment ju-

risprudence developed in the realm of immigration cases offers us little pro-

tection near the border, regardless of citizenship status. This Article

documents these trends and argues that, collectively, they debase the federal

* Associate Professor of Clinical Legal Instruction, University of Alabama School of Law. Thanks

to all those who gave me encouragement and feedback as I worked on this article, including Payvand

Ahdout, James M. Chavez, Jessica Eaglin, Eric Fish, Allyson E. Gold, Russell Gold, Daniel Harawa,

Randy Hertz, Babe Howell, Doug Keller, Shalini Ray, Barbara McQuade, John Meixner, Pamela

Metzger, Olinda Moyd, Renagh O’Leary, Ellen Podgor, Harini Raghupathi, Rita C. Rodriguez, Jocelyn

Simonson, Maneka Sinha, Kimberly Thomas, Kate Weisburd, and Erica Zunkel. Thanks also to Katrina

Smith for superb research assistance and to the incredibly thoughtful editors at the Georgetown

Immigration Law Journal. © 2023, Amy F. Kimpel.

237

criminal courts and erode constitutional and procedural norms in a way that

harms us all. Finally, it advocates for substantive changes to immigration

law and policy to begin to reverse these troubling trends.

TABLE OF CONTENTS

INTRODUCTION ......................................... 238

I. RISE IN IMMIGRATION AND BORDER PROSECUTIONS ............. 242

A. The Racist History of Immigration Prosecutions ........ 243

B. Modern Immigration Prosecution Trends. . . . . . . . . . . . . 245

C. How The War on Drugs Set the Scene . . . . . . . . . . . . . . . . 248

II. BORDER COURTS AND BORDER PROCEDURES . . . . . . . . . . . . . . . . . 251

A. Fast Track Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . 253

B. Operation Streamline ........................... 259

III. EROSION OF CONSTITUTIONAL PROCEDURAL RIGHTS . . . . . . . . . . . . 265

A. Delaying Presentment at the Border . . . . . . . . . . . . . . . . . 266

B. Alienating Bail ................................ 271

C. Alienating the Fourth Amendment. . . . . . . . . . . . . . . . . . 275

IV. ADDRESSING THE DYSFUNCTION IN FEDERAL CRIMINAL COURT . . . . . 280

A. The Importance of Federal Court Legitimacy .......... 281

B. Proposals to Repair the Federal Criminal Courts. . . . . . . 284

C. The Biden Administration Response................. 287

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288

INTRODUCTION

The history of liberty has largely been the history of observance of pro-

cedural safeguards.

1

1. Corley v. United States, 556 U.S. 303, 321 (2009).

238 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 37:237

Even aliens shall not be held to answer for a capital or other infamous

crime, unless on a presentment or indictment of a grand jury, nor be

deprived of life, liberty, or property without due process of law.

2

Though legal scholars, public defenders, and activists have shone a light on

the way the criminal legal system operates as “assembly-line justice,” where

largely poor people and people of color are coerced into quick guilty pleas en

masse,

3

federal criminal courts have often gotten a pass. This “pass” is based on

the conventional wisdom that, as compared to state and local courts, the proce-

dure afforded to those accused of crimes in federal court is more robust and

resource-intensive

4

and that the accused themselves are more affluent or power-

ful—white collar criminals, terrorists, drug kingpins and corrupt government

officials. Even scholars generally critical of the criminal legal system at times

hold the federal system out as a model.

5

This is not to say there have not been critics of the federal system and its lack of procedural rigor

and fairness. See, e.g., Ion Meyn, Constructing Separate and Unequal Courtrooms, 63 ARIZ. L. REV. 1

(2021); BABE HOWELL & PRISCILLA BUSTAMANTE, REPORT ON THE BRONX 120 MASS ‘GANG’

PROSECUTION (April 2019), https://perma.cc/B3XD-6VH9; Ronald F. Wright, Trial Distortion and the

End of Innocence in Federal Criminal Law, 154 U. PENN. L. REV 79 (2005).

For example, Law Professor Alexandra

Natapoff wrote of her time as a federal public defender handling misdemeanors:

Federal court is the top of the pyramid, there were lots of resources,

and everything mattered, even misdemeanors. My misdemeanor case-

load consisted of dozens, not hundreds, of cases. I had plenty of time to

talk to my clients, investigate, and prepare. Every official player in the

courtroom—me, the prosecutor, the judge—had the wherewithal to

take each case seriously. My office expected me to litigate zealously

when issues arose, and the prosecutors and judges expected that to hap-

pen. There were motions and hearings and trials and appeals. . . .

It would be naı

¨ve to think that the whole criminal system could work

like that courtroom. After all, the top of the pyramid is expensive; fed-

eral courts do not face the crush of cases and resource deprivations that

state and local courts do. But much of that positive culture flowed not

just from material resources but from habits and commitments of the

legal players involved. Everyone agreed that the people and their cases

mattered, and everyone acted that way to the best of their abilities. . . .

It wasn’t perfect—people were jerks, made mistakes, overreached, and

occasionally slacked off. And it wasn’t always fair. But in that

2. Wong Wing v. United States, 163 U.S. 228, 238 (1896).

3. See, e.g., ISSA KOHLER-HAUSMANN, MISDEMEANORLAND: CRIMINAL COURTS AND SOCIAL CONTROL

IN AN AGE OF BROKEN WINDOWS POLICING 20–22 (2018) (explaining how courts use “assembly-line justice”

in the criminal courts as a means of social control and marking); ALEXANDRA NATAPOFF, PUNISHMENT

WITHOUT CRIME: HOW OUR MASSIVE MISDEMEANOR SYSTEM TRAPS THE INNOCENT AND MAKES AMERICA

MORE UNEQUAL 248, 250 (2018); NICOLE GONZALEZ VAN CLEVE, CROOK COUNTY: RACISM AND INJUSTICE

IN AMERICA’S LARGEST CRIMINAL COURT 4–5 (2016) (describing how the criminal courts engage in the

“doing of racism” by processing “a racialized underclass of marginalized offenders”).

4. See, Stephanie Holmes Didwania, Discretion and Disparity in Federal Detention, 115 NW. L.

REV. 1261, 1275 (2021).

5.

2023] ALIENATING CRIMINAL PROCEDURE 239