How Crime-based Deportations Undermine State Sovereignty and Community Rehabilitation

• Publication year: 2019

Linus Chan and Caleb Harrison^*

Abstract: This article argues that federal immigration law undermines state criminal justice systems by eroding or eliminating key rehabilitative features of state criminal justice systems. Many states, and Minnesota in particular, delay or dismiss lengthy prison sentences and felony convictions in order to incentivize offenders to rehabilitate. Despite clear state intention to provide alternative dispositions to conviction, federal immigration law considers these dispositions as "convictions" for immigration purposes. Consequently, state offenders face immigration consequences that they otherwise would not, and state rehabilitative tools become weaker for all residents, citizen and noncitizen alike.

Introduction

The federal government's laser-like focus on deporting noncitizens undermines one of the individual states' interests, controlling the method and aims of their criminal justice system. The case against crime-based deportation has been covered from a variety of perspectives, from the Eighth Amendment proportionality context to its relation to banishment.¹ This article focuses on an under-examined consequence of how the practice of deporting people with criminal convictions erodes rehabilitative efforts in state criminal justice systems. We begin with the role and history of rehabilitation, examining how states, specifically Minnesota, attempt to foster rehabilitation in their criminal justice system. We then examine how Congress, and administrative interpretations of statutes, ignore state definitions of the term "conviction," thereby undermining state attempts to foster rehabilitation in the community.

Discussions of federalism and immigration law usually focus on immigration as a federal interest and states' limited ability to control immigration policy. States have long attempted to enact laws and policies in an attempt to either stem or encourage immigration.² The Supreme Court, most recently in Arizona v. United States³ recognized that the immigration power rests primarily under congressional control. However, what has not gotten as much attention is when and how an area broadly recognized in the federalist system as being a uniquely state interest—state criminal justice systems—is affected by federal immigration law.⁴

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Two recent stories exemplify the interaction of federal immigration law and state criminal justice systems. In December 2018, the New Yorker published a story about a former Cambodian refugee who faced removal to Cambodia for a crime he committed 20 years ago, a felony burglary.⁵ The story mentions in passing that the criminal conviction, his one and only crime, was in fact expunged, a state process to remove a criminal conviction from a person's criminal record. Similarly, in January 2018, stories ran about a Polish doctor who was arrested and put into proceedings, despite having been a 40-year resident of the United States, based on crimes committed when he was 17, one of which had been expunged.⁶ While both stories focused on the seemingly harsh and devastating effects that removal would impose on their respective family members, little attention was paid to the fact that at least in the criminal justice systems of their own states, they would be treated as if they had never committed their crimes. In both cases there is little dispute that these two men were rehabilitated—they had not committed crimes in decades. In each case, the state recognized and encouraged their rehabilitation by allowing them to remove the stigma of criminal convictions from their record; yet both men, to their surprise, found themselves facing a long-delayed consequence of their crimes: removal from the United States. California's and Michigan's efforts to foster rehabilitation in both men appeared to be successful, and yet their efforts were undermined by federal immigration law.

Why States Punish

There are two central schools of thought on why states have the power to imprison and punish people for crimes, roughly separated into those who believe that punishment's purpose is "utilitarian" and those who believe it is "retributive."⁷ For retributivists, the main function of the criminal justice system is to mete out punishment in a fashion that expresses condemnation and reflects moral standards of acceptable behavior. In other words, the purpose is to distribute "just desserts." For utilitarians, the main function of the criminal justice system is to promote socially beneficial outcomes, like the prevention of future harm and the rehabilitation of those who have transgressed. Generally, the utility camp believes that given the high costs of punishment, both in terms of societal costs and costs meted out against the accused, the punishment system must fulfill other such tangible goals as future crime deterrence, incapacitation, or rehabilitation. While immigration law affects each of these goals of state punishment, its effect on rehabilitation is perhaps most troubling.

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Rehabilitation

In the 1940s, states began to change the consequences of criminal activities in order to experiment with encouraging rehabilitation. For instance, in the juvenile context, states began to seal past criminal records to help "remove the infamy of their social standing." The practice spread to adults quickly thereafter with the Model Penal Code of 1962, which encouraged a "clean slate" approach, encouraging rehabilitation by allowing courts to vacate a conviction while still maintaining its record. Other mechanisms included "deferred adjudications," which allowed for those facing a criminal conviction to do "probation" first and, if successful, have their criminal conviction removed from their record. Minnesota has been a national leader in the design and implementation of rehabilitative criminal justice systems that incorporate rehabilitative ideals.

A Minnesota Case Study

Background

One of the earliest programs in Minnesota was the Probational Offenders Rehabilitation and Training (PORT) program in Rochester, instituted in 1969. PORT was a community-controlled facility serving juveniles and adults between the ages of 14 and 40. According to its first director, Kenneth Schoen, PORT's principal function was "to link the offender with the many resources available in the community," based on the recognition that most offenders do not require imprisonment and that the chances of restoring an offender to full citizenship in the community diminish the more the offender is involved in the correctional system.⁸

In light of the perceived success of the PORT program, the Minnesota legislature passed the 1973 Community Corrections Act—the first of many such acts around the nation—which sought to provide a statewide financial incentive program for local jurisdictions to take on increased correctional duties.⁹ The Act provided funds for appropriately sized counties (or groups of counties) to implement correctional programs that would keep relevant local offenders out of state prisons and in the local jurisdiction under which they were sentenced.¹⁰ The governor selected Schoen, as Commissioner of the state Department of Corrections, to oversee implementation of the Act.

The Department of Corrections' Implementation Guidelines underscore the degree to which the Act was guided by rehabilitative ideals: "It makes little sense to banish the law breaker from his community, place him in a disorientating, artificial situation, and then expect him to return home well adjusted. It makes a good deal of sense, however, to keep him in his regular surroundings, extend him special assistance, help him to become reintegrated to work, training, education, family and friends."¹¹ The rehabilitative ideals underlying the Act have continued to this day.

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Today

Minnesota's alternatives to imprisonment exist at several stages of the sentencing process: diversionary programs prior to adjudication, sentencing stays subsequent to a court or jury finding of guilt, and criminal record adjustments upon successful completion of a sentence. Each of these alternatives serves as an incentive to those in the system—abide by these conditions and avoid either a conviction or a lengthy prison sentence (in addition to the negative consequences resulting from either).

The Ramsey County Veterans Court (RCVC) exemplifies a diversionary program found in many counties in Minnesota.¹² Veterans who meet certain eligibility requirements (e.g., over 18, served in U.S. Armed Forces, resides in Ramsey County, has been or would be charged with a nonviolent felony, misdemeanor, or gross misdemeanor) can in certain circumstances qualify for the Veterans Court at various stages of sentencing, ranging all the way from the pre-charge stage to the post-sentence probationary stage. Participants are connected to relevant services addressing chemical dependencies, mental health treatment, housing, employment, childcare, and medical care among other services. For those who enter at the pre-charge stage and successfully complete their sentence, no charges will be filed. For those who enter at later stages, similar benefits are available, ranging from dropped charges to stays of executed prison sentences.

Stayed sentences are also available to those going through traditional criminal courts in Minnesota. Sentences may be stayed at three stages of sentencing: adjudication, imposition, and execution. An adjudicated stay occurs when an offender pleads guilty, but the court rejects the plea, suspends the sentence under various conditions similar to probation (e.g., jail, community service, treatment programs, etc.). Upon successfully meeting all conditions, charges against the offender may be dismissed, and the offender can escape a conviction on their record. Alternatively, a judge can stay the imposition of a sentence. A stay of imposition occurs when an offender pleads or is found guilty, but the judge stays the imposition of the...