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Criminalization or instrumentalism? New trends in the field of border criminology
Abstract
The crimmigration literature has underlined the increasing merging of criminal law and immigration law practices and procedures. Border criminology literature, in turn, has recently scrutinized the penal scenario in which this alleged fusion is taking place. Both pieces of scholarship, though, largely overlook the agonistic coexistence of border control interests and crime prevention aims, as well as the preference given to immigration enforcement arrangements over criminal law procedures in many jurisdictions. By drawing on a number of cases mainly—albeit not exclusively—taken from Spanish crimmigration policies, this article examines what may be called the ‘instrumentalism’ strategies that are notably transforming crime control practices targeting noncitizens, and the criminal justice system in its entirety.
... Immigration controls as a police matter in Finland 2018; Brandariz, 2022;Franko, 2020). In particular, the crimmigration thesis on the merger of criminal justice and immigration control systems based on legal analysis of United States policies has inspired increasing interest in immigration enforcement measures among criminologists (Stumpf, 2006). ...
... The police actively use immigration law for the removal of foreign offenders, either making removal proposals for the Finnish Immigration Service or issuing removal orders themselves for temporarily visiting third-country nationals (limited to minor offences for individuals that have not been in Finland for more than three months). As the police investigate the preconditions of residence in connection with criminal investigation, they can decide whether to invoke criminal or removal procedures, or both (see Brandariz, 2022;Franko, 2020). In particular, the Finnish Alien Act stipulates vague removal grounds for temporarily visiting third-country nationals concerning potential future behaviour, such as reasons to suspect that the foreign national will commit (repeated) offences or earn income through dishonest means. ...
... Contrary to claims of the merging of criminal and immigration law, not to speak of "crimmigration law" (Stumpf, 2006), immigration enforcement measures remain largely separate from the criminal justice system. Notwithstanding the institutional overlaps and similarities in coercive measures, criminal law, and immigration law provide two distinct sets of instruments for the authorities to control foreign nationals (Brandariz, 2022;Franko, 2020;Könönen, 2024;Moffette, 2020). Instead of a dual criminal system for members and non-members, different legal statuses among foreign nationals together with the severity of the offence determine whether criminal charges also initiate the removal process. ...
In Finland, security concerns have always prevailed in immigration enforcement, despite the relatively low share of immigrant population. Historically, immigration controls have been a police matter in Finland, involving a strong emphasis on public order and security concerns and sharing similarities with vagrancy laws in the control of mobile poor people. Despite the introduction of a legal framework regulating immigration enforcement since the 1980s, immigration law provides broad discretionary powers for the police to control foreign nationals and impose administrative coercive measures with little judicial supervision. Immigration enforcement measures remain largely separate from the criminal justice system: the immigration authorities possess considerable discretionary powers to remove foreign offenders at low thresholds, depending on the legal status of foreign nationals. The police use considerable efforts for removals, with immigration detention being a routine practice in the control of deportable foreign nationals, including rejected asylum seekers, irregular migrants, and foreign offenders. The Finnish case demonstrates a long history of police powers and administrative coercive measures in the control of mobile populations outside the criminal justice system, pointing to the need for theoretical attention to police powers and the public order and security framework in immigration enforcement in border criminology discussions.
... Drawing on legal and policy analyses on immigration enforcement reforms in the United States, Stumpf highlighted the convergence of criminal law and immigration law, pointing to the overlap in their substance, similarities in enforcement practices and procedural parallels. While acknowledging the distinctions between immigration and criminal law measures (including limited constitutional protection and broad powers to detain non-citizens), Stumpf (2006: 367) suggested the merger of the two formerly distinct laws into 'crimmigration law': 'Immigration law today is clothed with so many attributes of criminal law that the line between them has grown indistinct.' Notwithstanding attention to the duality of coercive systems concerning foreign offenders (Brandariz, 2022;Franko, 2020), many scholars in Europe have highlighted the impact of criminal law measures on border controls and immigration enforcement in the framework of border criminology (e.g. Aliverti, 2012;Barker, 2018;Bosworth, 2017). ...
... Crimmigration and border criminology scholars have emphasized the impact of the criminal justice system on the development of coercive immigration enforcement practices drawing largely on the theoretical framework originating from analysis of the distinct legal system in the federal government of the United States (Brandariz, 2022;. However, and notwithstanding the recent facilitation of removals of foreign offenders and the expansion of enforcement capacities, 'immigration law and criminal law procedures have remained more autonomous and separated' in Europe than is usually acknowledged (Brandariz, 2022: 290). ...
... Immigration law and criminal law provide two distinct instruments to control mobile populations and enforce social order (see Brandariz, 2022;Franko, 2020; van der Woude and van der Leun, 2017). In addition to constituting crime and criminals 'by selecting when and against whom to apply coercion' (Aliverti, 2020: 9), the police also make decisions whether to invoke criminal law or immigration law (or both) for foreign offenders, consequently either processing the case following criminal procedures or deciding to 'change tracks' and select administrative deportation procedures based on immigration law (Franko, 2020: 94). ...
Notwithstanding claims about the emergence of 'crimmigration' systems, immigration law and criminal law entail two different sets of instruments for authorities to control foreign nationals. Drawing on an analysis of removal orders for foreign offenders in Finland, this article demonstrates that significant administrative powers in immigration enforcement are employed largely autonomously from the criminal justice system. Immigration law enables the police and immigration officials to issue removal orders based on fines or penal orders for (suspected) minor offences, without obtaining criminal convictions. In addition to disproportionate administrative sanctions for foreign nationals, removal orders involve a preventive rationale targeting future risks for the society based on the assumed continuation of criminal activities. While criminal courts adjudicate all severe offences, punitive application of immigration law enables authorities to bypass criminal justice procedures and safeguards, resulting in a distinct, administrative punitive system for visiting third-country nationals.
... In other cases, these deportation practices contribute to circumvention of regular criminal justice procedures in a different way. In a conspicuous manifestation of the instrumentalism characterising immigration enforcement policies (Brandariz, 2021b;Sklansky, 2012), 22 CRD deportations are also being used to quickly get rid of alleged troublesome EU national groups instead of funnelling them into the time-and resource-consuming criminal justice adjudication processes (Brandariz, 2021b; see also Aliverti, 2020). Deportation practices in France are a telling exam ple of this instrumentalism rationale (see also Maslowski, 2015;Vrȃbiescu, 2021aVrȃbiescu, , 2021b. ...
... In other cases, these deportation practices contribute to circumvention of regular criminal justice procedures in a different way. In a conspicuous manifestation of the instrumentalism characterising immigration enforcement policies (Brandariz, 2021b;Sklansky, 2012), 22 CRD deportations are also being used to quickly get rid of alleged troublesome EU national groups instead of funnelling them into the time-and resource-consuming criminal justice adjudication processes (Brandariz, 2021b; see also Aliverti, 2020). Deportation practices in France are a telling exam ple of this instrumentalism rationale (see also Maslowski, 2015;Vrȃbiescu, 2021aVrȃbiescu, , 2021b. ...
... According to Brandariz (2022), crimmigration has led to treating past immigration law violations as criminal oences. Moreover, immigration enorcement actions, like deportations, are now integrated into the sentencing protocols o criminal cases involving non-citizens. ...
This essay examines the Greek immigration control system, starting with a brief overview of crimmigration and enemy penology literature. It combines insights from these concepts to introduce the theory of “enemy under-criminalization” which emphasizes the inimical treatment of irregular immigrants without offering them the safeguards of criminal law. The study then identifies key pillars utilized by the Greek state in controlling human mobility at the border. These include immigration detention, pushbacks, and the criminalization of solidarity with immigrants. The essay examines how these mechanisms lack the protections of criminal law, directly treating irregular immigrants as enemies. It concludes by noting the challenges to democracy and the rule of law posed by these practices.
... This research adds to the growing number of empirical studies of US immigration court in the past decade (Eagly 2015;Eagly and Shafer 2015, 2020a, 2020bRyo 2016Ryo , 2018Ryo , 2019aRyo and Peacock 2018;Asad 2019). Our questions also resonate with theoretical research covering both the criminalization of immigration enforcement and the "immigrationization" of penal systems in the global North (Brandariz 2021). To answer our questions, we use third-party immigration court observations to construct and apply a theoretical concept of what we term "crimmigrating narratives," defined as selective tellings that categorize individuals as criminals based on their non-citizen status. ...
Examining what we call “crimmigrating narratives,” we show that US immigration court criminalizes non-citizens, cements forms of social control, and dispenses punishment in a non-punitive legal setting. Building on theories of crimmigration and a sociology of narrative, we code, categorize, and describe third-party observations of detained immigration court hearings conducted in Fort Snelling, Minnesota, from July 2018 to June 2019. We identify and investigate structural factors of three key crimmigrating narratives in the courtroom: one based on threats (stories of the non-citizen’s criminal history and perceived danger to society), a second involving deservingness (stories of the non-citizen’s social ties, hardship, and belonging in the United States), and a third pertaining to their status as “impossible subjects” (stories rendering non-citizens “illegal,” categorically excludable, and contradictory to the law). Findings demonstrate that the courts’ prioritization of these three narratives disconnects detainees from their own socially organized experience and prevents them from fully engaging in the immigration court process. In closing, we discuss the potential implications of crimmigrating narratives for the US immigration legal system and non-citizen status.
The aim of this article is to describe the evolution of immigration detention policies at the Southern European border. This will be done by presenting original data on the actual functioning of immigration detention in Italy in the wake of the so-called “refugee crisis”. By shedding light on these developments, the article reveals a notable convergence of first reception and return policies, which in turn is driving a transformation of the landscape of immigration detention leading to a proliferation of detention regimes and spaces of containment. Drawing on the literature on carceral geographies, this development is analyzed within the framework of Italy's distinct role in the geopolitics of EU border control policies. The article ultimately suggests that the immigration detention system has gradually been co-opted by the border control infrastructure, becoming part of a broader and intricate control assemblage whose essential function is the regulation of human mobility.
Human smuggling crimes and facilitation criminal offences have been widely explored by legal scholars. The legal literature has insightfully pointed out the various shortcomings of the legal provisions criminalising facilitation activities, contrasting them with the principles of a rights-based model of criminal justice. Much less research has been conducted on the actual enforcement of these criminal law provisions on the ground. This research gap is especially noteworthy with regard to comparative studies. This chapter contributes to bridge that gap by considering the various pitfalls stemming from the implementation of anti-smuggling penal policies in a number of western European countries. In so doing, the chapter explores the relative insignificance of smuggling and facilitation crimes in various jurisdictions, as well as their uneasy coexistence with irregular migration criminal offences. In addition, the chapter spotlights the effectiveness dimension of these penal policies, scrutinising what the rare enforcement of smuggling and facilitation crimes tells us about the role played by the criminal justice system in the coercive management of irregular migration.
Th is article presents the results of a study on the eff ectiveness of carrying out community service (a penalty for committing a crime or misdemeanour which entails performing work f or social purposes) and social work (where a fi ne can be converted into such work if the obligated person cannot pay it) by perpetrators of criminal acts related to the smuggling of goods. For the purposes of the current study, punishments consisting of work were defi ned as eff ective when they remained unchanged and were carried out as community service. Th e study found that if punishment in the form of work was applied to them, perpetrators of smuggling-related crimes or off ences performed such work far more oft en than perpetrators of other criminal acts who were subjected to the same punishment (93.8% v. 65.1%). Moreover, it was established that criminal acts related to the smuggling of goods are committed equally oft en by women and by men (in this category of criminal acts, women comprised 46.2% of perpetrators, with the mean for all criminal acts and petty off ences taken into account in the current study being 15%). Th e article concludes that the present results may suggest that perpetrators of such criminal acts or petty off ences treat them as a way to gain additional income. Th is is evidenced, for example, by the fact that many people had more than one sentence to serve for committing a criminal act related to smuggling.
El castigo estatal constituye una práctica que solo puede aspirar a ser legítima si tiene lugar en el contexto de una relación política mínimamente justa. De ahí que en la literatura se han identificado dificultades para justificar el castigo de quienes se encuentran en los márgenes de la relación política, como ocurre con los extranjeros. Para identificar con mayor precisión los desafíos de legitimidad de nuestras prácticas penales frente a la población extranjera, este artículo propone una aproximación normativa y luego describe e identifica los principales déficits de legitimidad que existen en el ámbito del encarcelamiento de población extranjera en Chile. El trabajo sostiene que existe un alto déficit de legitimidad que se configura por una serie de espacios en los que nuestras instituciones penales muestran extrema indiferencia frente a las necesidades y afecciones particulares de este grupo.
By focusing on these “article 23 SBC checks”, this article will argue that the Schengen Agreement and the Schengen Border Code are—and always have been—incomplete policy responses to the tension that was felt from the very beginning of “Schengen” between (national) security and freedom of movement. In fact, by drawing from the work of Wonders on the flexibilization of state power which interlinks with Mofette’s and Valverde’s work on jurisdiction and interlegality as well as with the ideas around conscious incompleteness of agreements and regulation, the article will argue that member states as well as enforcement agencies have been consciously using the interplay between the normative regime on the European level and the normative regime and implementation and execution thereof on the national and local level.
The criminalization of Muslims—framing an Islamic religious identity as a problem to be solved using state crime control logic—is undeniably in process in the United States. Local, state, and federal statutes target Muslims for surveillance and exclusion, and media sources depict Muslims as synonymous with terrorism, as others have shown. This paper analyzes the public’s role in the criminalization of Islam, which I call “cr-Islamization.” Drawing on in-depth, qualitative interviews in a major Southwest city during the lead-up to the 2016 presidential election, I detail how the majority of 144 politically, racially, and economically diverse interviewees talk about Muslims as a potential “racial threat,” using “fear of crime” language indicative of the mass incarceration era. This suggests that criminalization theory should be central to sociological studies of Muslims in the contemporary United States, and that criminalization rhetoric remains powerful, despite mainstream enthusiasm for criminal justice reform. I argue that criminalization’s power might reside in its ability to mutate in the “post-racial” era. The mechanisms supporting crimmigration, the criminalization of black Americans, and cr-Islamization are related but not identical. Muslims are religiously and racially subjugated, but more economically secure compared to other criminalized groups. This paper’s findings should prompt scholars to re-examine the relationships between racialization, criminalization, religious subjugation, and economic exploitation in the twenty-first century United States.
This article explores the challenges that (cr)immigration practices pose to draw the boundaries of punishment by examining foreign national prisoners’ penal subjectivities. More exclusionary and draconian migration policies have blurred the boundaries between border control and crime control, creating hybrid forms of punishment that, even if officially claimed as measures outside the criminal justice realm, inflict pain and communicate censure. Drawing on 37 in-depth interviews with foreign national prisoners facing expulsion in the Dutch penitentiary facility of Ter Apel, we detail how hybrid (cr)immigration practices are capable of imposing and delivering meanings that go well behind rooted significances and aims of administrative measures. Traditionally designed with preventive purposes, administrative measures have now become part of a project of social exclusion and reaffirmation of the worth of citizenship. This circumstance raises problematic questions for the legitimacy of the criminal justice system in dealing with non-citizens.
During a post-election TV interview that aired mid-November 2016, then President-Elect Donald Trump claimed that there are millions of so-called “criminal aliens” living in the United States: “What we are going to do is get the people that are criminal and have criminal records, gang members, drug dealers, we have a lot of these people, probably two million, it could be even three million, we are getting them out of our country or we are going to incarcerate.” This claim is a blatant misrepresentation of the facts. A recent report by the Migration Policy Institute suggests that just over 800,000 (or 7 percent) of the 11 million undocumented individuals in the United States have criminal records. ¹ Of this population, 300,000 individuals are felony offenders and 390,000 are serious misdemeanor offenders — tallies which exclude more than 93 percent of the resident undocumented population (Rosenblum 2015, 22–24). Moreover, the Congressional Research Service found that 140,000 undocumented migrants — or slightly more than 1 percent of the undocumented population — are currently serving time in prison in the United States (Kandel 2016). The facts, therefore, are closer to what Doris Meissner, former Immigration and Naturalization Service (INS) Commissioner, argues: that the number of “criminal aliens” arrested as a percentage of all fugitive immigration cases is “modest” (Meissner et al. 2013, 102–03).
The facts notwithstanding, President Trump's fictional tally is important to consider because it conveys an intent to produce at least this many people who — through discourse and policy — can be criminalized and incarcerated or deported as “criminal aliens.” In this article, we critically review the literature on immigrant criminalization and trace the specific laws that first linked and then solidified the association between undocumented immigrants and criminality. To move beyond a legal, abstract context, we also draw on our quantitative and qualitative research to underscore ways immigrants experience criminalization in their family, school, and work lives.
The first half of our analysis is focused on immigrant criminalization from the late 1980s through the Obama administration, with an emphasis on immigration enforcement practices first engineered in the 1990s. Most significant, we argue, are the 1996 Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) and the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). The second section of our analysis explores the social impacts of immigrant criminalization, as people's experiences bring the consequences of immigrant criminalization most clearly into focus.
We approach our analysis of the production of criminality of immigrants through the lens of legal violence (Menjívar and Abrego 2012), a concept designed to understand the immediate and long-term harmful effects that the immigration regime makes possible. Instead of narrowly focusing only on the physical injury of intentional acts to cause harm, this concept broadens the lens to include less visible sources of violence that reside in institutions and structures and without identifiable perpetrators or incidents to be tabulated. This violence comes from structures, laws, institutions, and practices that, similar to acts of physical violence, leave indelible marks on individuals and produce social suffering. In examining the effects of today's ramped up immigration enforcement, we turn to this concept to capture the violence that this regime produces in the lives of immigrants.
Immigrant criminalization has underpinned US immigration policy over the last several decades. The year 1996, in particular, was a signal year in the process of criminalizing immigrants. Having 20 years to trace the connections, it becomes evident that the policies of 1996 used the term “criminal alien” as a strategic sleight of hand. These laws established the concept of “criminal alienhood” that has slowly but purposefully redefined what it means to be unauthorized in the United States such that criminality and unauthorized status are too often considered synonymous (Ewing, Martínez, and Rumbaut 2015). Policies that followed in the 2000s, moreover, cast an increasingly wider net which continually re-determined who could be classified as a “criminal alien,” such that the term is now a mostly incoherent grab bag. Simultaneously and in contrast, the practices that produce “criminal aliens” are coherent insofar as they condition immigrant life in the United States in now predictable ways. This solidity allows us to turn in our conclusion to some thoughts about the likely future of US immigration policy and practice under President Trump.
Penality in Scandinavia has been seen as somewhat of an outlier, a redoubt against the punitive turn witnessed in other parts of Western Europe and the United States. This article examines contemporary discourses of penality in Norway following the entry into government of the populist-right Progress Party. The analysis describes how government representatives frame themselves as protecting individual security and prioritising victims whilst pursuing a bordered version of penal populism directed against non-citizens. These non-Norwegians are shown to be the focus of a range of penal populist policies, including fast-track justice, a warehousing prison regime, targeting of petty offenders and the double punishment of imprisonment and deportation. In a context where the penal welfare consensus with respect to Norwegian citizens remains relatively strong, it is easier for the Progress Party to ‘do populism’ by focusing on non-citizens.
This article considers the future of punishment in a world shaped by competing and reinforcing forces of globalization and nationalism. In it, we call for a wider conversation about the growing interdependence between criminal justice and migration control and of its implications for many of the key concepts and approaches within the field of punishment and society. The article examines the renewed salience of defending borders and drawing boundaries between members and non-members, as well as the shifting focus of penal power from issues of imprisonment and morality, towards questions of immobilization and expulsion from the polity. By doing so, it also addresses the gaps in the existing theories and narratives about penality, which fail to take properly into account the implications of global connectivity, while overlooking enduring matters of racial and class inequity. Finally, the article points out how the progressive destabilization of citizenship and the precarity of membership and belonging are inimically linked to increasingly potent exhortations of penal power that affect us all.
In the second part of his article on Scandinavian exceptionalism, John Pratt identified certain developments that might undermine the exceptional status of Scandinavian prisons and penal culture. A major problem looming on the horizon, according to Pratt, was the effects of globalization on Scandinavian societies. Since then, scholars have claimed that a bifurcation is emerging in the Norwegian correctional system, with humane and inclusive punishments reserved for nationals, while a more exclusionary alternative system is being developed to respond to the perceived challenge represented by foreign nationals. The opening of Norway’s first all-foreign prison in 2013 has been seen as part of this trend. In this article, we describe three pains of imprisonment experienced by foreign national prisoners: those of (1) discrimination; (2) long-distance relationships; and (3) deportability. We argue that these are all specifically tied to the prison’s status as an all-foreign prison.
In his latest Perspective, ICCT Fellow Francesco Marone discusses the specificities of Italy's use of administrative deportation of foreign citizens as a counter-terrorism policy.
In Sweden, control of the mobile poor is often driven by the needs and demands of the welfare state itself and follows a different logic outside the neoliberal paradigm. By examining the case of the Roma, EU citizens who travel to Sweden to ask for money on the streets, we can see the expansion and retraction of the criminal law as the government responds to new forms of migration and poverty in its society. The government’s mixed responses – no to bans on begging, but yes to evictions – are the result of dualities inherent in Nordic welfare states, when their inclusionary ameliorative dimensions collide with their exclusionary and nationalistic tendencies. This article proposes the term benevolent violence to conceptualize this duality. It occurs when coercive means are used to uphold the state’s ameliorative goals and when the state’s ameliorative practices have violent effects. In the case of the Roma, it means protecting them from their own livelihood and it means protecting the welfare state for nationals, keeping it solvent for members.
The growing centrality of " criminal aliens " to American immigration enforcement is one of the most significant historical shifts in the federal immigration system. However, little is known about how this dramatic restructuring of federal immigration priorities affects local criminal justice systems. Do noncitizens experience the same type of criminal justice as citizens? This Article seeks to answer this question by offering the first empirical study of how local criminal process is organized around immigration enforcement and citizenship status. It accomplishes this task by analyzing the criminal justice systems of the three urban counties that prosecute the highest number of noncitizens: Los Angeles County, California; Harris County, Texas; and Maricopa County, Arizona. Comparative review of law, procedure, and practice in these three counties reveals that immigration's interaction with criminal law has a far more powerful impact on local criminal practice than previously understood. Across all three counties, the practical effects of the federal government's reliance on arrests and convictions in making enforcement decisions are felt at every stage of the criminal process: Immigration status is part of routine booking at local jails, " immigration detainers " impede release on criminal bail, immigration officials encourage criminal prosecutors to secure plea agreements that guarantee removal, and noncitizens are sometimes deported before their criminal cases are completed. Yet, there is surprising variation in how these three counties have structured their criminal practices in light of the consistently deep connections between criminal process and immigration enforcement. As this Article develops, the three jurisdictions have adopted distinct models of noncitizen criminal justice—what I term alienage neutral, illegal-alien punishment, and immigration enforcement. Each model reflects significant agreement across county agencies about the appropriate role of noncitizen status in criminal case adjudication and of local involvement in deportation outcomes. These findings have important implications for the institutional design of both local criminal systems and federal immigration enforcement.
In the spring of 2014, President Obama’s administration reached a landmark of over 2 million deportations—more in under six years than the sum total of all deportations prior to 1997. Mass deportation has not affected all communities equally: the vast majority of deportees are Latin American and Caribbean men. Today, nearly 90 percent of deportees are men, and over 97 percent of deportees are Latin American or Caribbean. This article explores the global context under which mass deportation has occurred and draws parallels with mass incarceration. Whereas other scholars have characterized mass deportation as a tool of social or migration control, this article argues that mass deportation is best understood as a racialized and gendered tool of state repression implemented in a time of crisis. I argue that the confluence of four factors has created the conditions of possibility for mass deportation from the United States: (1) nearly all deportees are Latin American and Caribbean men; (2) the rise of a politics of fear in the aftermath of the attacks of September 11th; (3) the global financial crisis; and (4) the utility of deportees
Drawing on an empirical study, this article explores the role of immigration detention in Italy by analysing the way a specific rhetoric of ‘dangerousness’ has developed and is being used within the framework of immigration enforcement policies. Our argument is that immigration detention has been transformed into an instrument of crime prevention and ‘social defence’, and that this transformation is fuelled by the central position that the legal categories of ‘risk’ and ‘danger’ have assumed in the regulation of the return procedure. The article contends that immigration law enforcement agencies can make use of immigration detention as a flexible control tool to manage what are perceived as the most problematic populations in urban areas, thus practising a policy of selective enforcement that while not explicitly built along racial and ethnic lines, clearly discriminates among migrants according to their ‘social marginality’ or supposed ‘social dangerousness’.
In this article I examine ‘Operation Nexus’, a collaborative initiative between the police and immigration enforcement in the UK, and its impact on foreign national and minority ethnic suspects of offending. I explain how strategic policing aims to manage migration around notions such as ‘high harm’ offenders, target those who appear ‘foreign’ as well as visible ethnic minority suspects, the latter of which may hold citizenship in the UK. The consequences of Operation Nexus are therefore wider than its stated aim because it legitimizes racial profiling by the police and has negative consequences on notions of belonging for racialized foreign nationals and citizens albeit in different ways. By presenting empirical research with those who implement Operation Nexus as well as those who experience it, I elucidate how the policing of migration revives and extends colonial premises that connect nationality, race and criminalization within the expanding and merging realm of contemporary criminal justice and migration control. I draw on Lerman and Weaver’s thesis that when contemporary criminal justice policies disproportionately affect racial and ethnic minorities, they create an unequal group of people that are exiled within their own society and disenfranchised from public institutions such as the police.
This article examines the contemporary role of the police in patrolling the nation’s territorial and social borders. The police play an important role in framing ideas and perceptions of order and disorder. By selecting when and against whom to apply coercion, the police not only constitute crime and criminals. They shape the boundaries of civility and patrol the margins of citizenship. Such role has been revitalized lately as they are tasked with immigration enforcement functions. Drawing on an empirical examination of immigration–police cooperation in England, I explore how police and immigration officers define the remits of their job and work alongside each other in everyday policing. I argue that the reliance on immigration enforcement by the police evinces the limitations of modern policing to decipher the new geographies of crime and disorder, and their difficulties in offering a reassuring response to public anxieties and ultimately in producing social order.
In a contemporaneity of high mobility, porous borders, and harsher immigration laws, the great majority of illegalized migrants are not deported; they remain in the territory in a condition of legal non-existence. Through a case study of the interaction between illegalized migrants and police in Italy, this article demonstrates the utility of the
concept of “border performativity” for the research on border control. It reveals how “differential inclusion” operates in a particular site, and it uses Althusser’s concept of interpellation in its discussion of discipline and resistance in the mechanisms of internal bordering. Finally, my development (and use) of the term undeportability extends theory by urging criminologists of mobility to consider contexts in which choices are structured by the inability of officials to fully deploy the deportation regime.
The article maps out the multilayered legal governance of immigrant street vendors in Barcelona. The case study is used to develop the literature on crimmigration by suggesting better ways to account for the dynamic, asymmetric, and uneven legal intersections at play in immigration governance. Questioning the idea of a merger between immigration law and criminal law that scholars of crimmigration often imply, the article suggests that it is the heterogeneity and distinction between various legal regimes that is most productive and problematic in the governing of immigrants. The article offers the concept of interlegal jurisdictional games as an alternative point of entry to study these dynamics.
This article provides a critical review of key theoretical positions relevant to border control and sets out an agenda for developing these ideas. In 2005 Mythen and Walklate published a theoretical milestone for the study of terrorism in their article ‘Criminology and terrorism: Which thesis? Risk society or governmentality?’. Those authors reviewed two theories of risk, considering how each might contribute to understanding ‘new terrorism’. Inspired by ‘Which thesis?’ we review, contrast and compare three key theoretical contributions relevant to penology, criminology and border control: Stump’s ‘crimmigration’ thesis, Bosworth and Guild’s adaptation of the ‘new penology’ perspective, and Krasmann’s critique of Jakobs’ ‘enemy penology’ thesis. The article consolidates these important theoretical strands into one critical discussion, highlighting the growing relevance of the pre-crime literature to the study of borders, and signposting potential theoretical developments within border criminology that build on these foundations.
The almost unilateral power of the American prosecutor over criminal justice outcomes is a subject of frequent academic commentary. Yet, the expansion of the prosecutor’s power over immigration enforcement has proceeded quietly and garnered far less academic scrutiny. This chapter argues that when immigration enforcement is carried out by criminal prosecutors, the democratic prosecutorial function is threatened. In the United States, an ongoing focus on immigration enforcement against individuals charged with crimes has fostered a separate system of enhanced punishment for immigrants that extends beyond the institutional framework granted to prosecutors by the legislatures that draft the criminal law and the courts that constrain procedural practices. This chapter concludes by offering concrete policy recommendations for disentangling immigration enforcement from prosecutorial decisionmaking, thereby returning the prosecutor to the democratically assigned task of enforcing the criminal law and reinforcing the democratic ideal of equality.
This article examines institutional practices designed to control criminalized migrants in the UK and advances three arguments. First, these practices have evolved, since the early 1970s, into a bespoke ‘crimmigration control system’ distinct from the domestic criminal justice system. Second, this system is directed exclusively at efficient exclusion and control; through a process of adiaphorization, moral objections to the creation of a ‘really hostile environment’ have been disabled. Third, the pursuit of the criminalized immigrant—a globally recognized ‘folk devil’—provides a vital link between domestic and global systems of policing, punishment and exclusion. The UK crimmigration control system is an example of wider processes that are taking place in institutions concerned with the control of suspect populations across the globe.
Contemporary state and extra-state coercive practices dedicated to both the encampment and ghettoization of the Roma, as well as their eviction and displacement, are inextricable from long-standing processes of Roma racial subordination. Inasmuch as many Roma people have been juridically re-inscribed over recent years as ostensible EU-ropean citizens, however, the securitization of their mobility within and across the space of EU-rope supplies a premier instance of their precisely abject relation to EU-ropean citizenship. The abjection of the mobility of the Roma thus contributes to a more wide-ranging process of ‘neo-nomadization’. Simultaneously ‘citizens’, ‘migrants’, and ‘refugees’, Roma people emerge repeatedly as a kind of limit figure, and their mobilities therefore provide a particularly revealing site for the interrogation of the re-bordering of ‘Europe’ as such.
In recent years, the deportation and detention of immigrants has become a common phenomenon around the world. In this article, we shed light on the global expansion of crimmigration (the increasingly blurring of lines between immigration and criminal laws) and examine in depth the United States as an example of this trend. Crimmigration scholarship has largely focused on the processes in which laws, media narratives, and political discourses criminalize undocumented immigrants. We summarize the literature that demonstrates how these processes are predicated on the racialization and gendering of certain immigrants, in the United States and elsewhere. Using the US case as an example, we discuss how criminalization practices are closely tied to for profit prison interests. Finally, we provide suggestions for future research to critically examine the criminalization of immigration and immigrants.
In late summer 2015, Sweden embarked on one of the largest self-described humanitarian efforts in its history, opening its borders to 163,000 asylum seekers fleeing the war in Syria. Six months later this massive effort was over. On January 4, 2016, Sweden closed its border with Denmark. This closure makes a startling reversal of Sweden's open borders to refugees and contravenes free movement in the Schengen Area, a founding principle of the European Union. What happened? This book sets out to explain this reversal. In her new and compelling book, Vanessa Barker explores the Swedish case study to challenge several key paradigms for understanding penal order in the twenty-first century and makes an important contribution to our understanding of punishment and welfare states. She questions the dominance of neoliberalism and political economy as the main explanation for the penalization of others, migrants and foreign nationals, and develops an alternative theoretical framework based on the internal logic of the welfare state and democratic theory about citizenship, incorporation, and difference, paying particular attention to questions of belonging, worthiness, and ethnic and gender hierarchies. Her book develops the concept of penal nationalism as an important form of penal power in the twenty-first century, providing a bridge between border control and punishment studies.
In this article, I examine the changing nature of punishment under conditions of mass mobility. Drawing on research conducted in immigration removal centres in the UK, I will show how porous boundaries between administrative penalties and criminal penalties have made the two systems co-constitutive and, in so doing, have drawn into question the liberal foundations of punishment. As foreigners face additional, administrative burdens and are subject to processes of differentiation and exclusion simply by virtue of their citizenship, I suggest, basic values of due process, fairness and equality of treatment and outcome, are drawn into question. As a consequence, justice itself is transformed.
Penal power at the border relies on coercive tools such as expulsion, eviction, criminalization, and penalization to respond to mass mobility, which is perceived to be a social threat rather than a political expression of rights. By deploying its primal power, its material and symbolic violence invested in criminal justice, the state taps into unparalleled capacity to impose meaning on others, backed by the moral weight of censure and sanction. The criminalization and penalization of migrants are effective precisely because they bring moral weight to this sorting process, separating the worthy from the wrongdoer. This article develops conceptual tools to understand the structural and communicative capacities of penal power to reconstitute the nation state, to reset the national frame of reference, and reassert the state’s dominion over it.
Inside and outside of the sphere of immigration law, liminal legal statuses are proliferating. These legal categories function simultaneously as a means to effectuate administrative resource conservation through community-oriented risk management strategies and as a form of "preservation through transformation" that enable governmental actors to reassert and maintain control over populations identified as risky in ways that do not trigger the rights-protective schemes that evolved both internationally and domestically in the mid-Twentieth Century. This Article uses the existing literature on liminal legal subjects as a starting point for understanding and critiquing the legal mechanisms that produce liminal legality. Part I discusses the taxonomical features of liminal legality identified in studies focusing on the life experiences of marginalized noncitizens. These features include uncertainty about the scope of reprieve from banishment, a reliance on administrative grace to effectuate freedom from banishment, an obligation to pay one's way to prevent that banishment, experiences of heightened monitoring by governmental actors, and a related vulnerability to control, exclusion, and abuse by private actors. Part II tests the possibility of expanding notions of liminal legality outside of the iconic cases of noncitizens granted temporary reprieves from removal. This section expands the analysis first to other, more legally privileged noncitizens, then to citizens in immigrant communities, and finally to broader classes of citizens with relatively high rates of contact with law enforcement agents. This analysis highlights the commonalities of the legal structures that regulate and punish these diverse categories of individuals and communities that experience liminal legality. Part III explores the potential benefits that transubstantive legal analysis focusing on liminal legality offers over more subject-specific frames like "crimmigration." Framing legal analysis in terms of liminal legality could both check unjustifiable presumptions of immigration law exceptionality and foster the identification of the common regulatory practices that have generated a broader social normalization of liminal legality. Additionally, a focus on the legal production of liminal legality may, in fact, open up a path to return crimmigration scholarship to its deeper theoretical grounding in membership theory, thereby reinvigorating the discussion of the role that race, class, and place play in structuring governance strategies both at the border of criminal and immigration law and beyond it.
Over the first decade of this century, Spain was a primary destination of international migrants. Successive Spanish governments have addressed this phenomenon by implementing a number of control measures, largely aimed at securing external and internal borders. However, the persistence of the economic crisis has led to the readjustment of the whole system of migration control. This article intends to shed light on the underlying rationales of the current transformation of Spanish policies within this field. It will scrutinise the implications of the managerial turn in the Spanish apparatus of deportation and conclude by outlining a range of legal reforms grounded in a human rights perspective.
In a widely circulated image from the Spanish enclave of Melilla, over 20 young men sit perched atop a razor-crowned border fence that is emblematic of the sharp divide between bare life in poor nations and a life of relative privilege in the West. Metaphorically, Spain, too, sits on a fence: Spain struggles to balance its history as a sovereign nation that experienced rapid economic growth, in part by incorporating migrants into the labour force, with contemporary pressures to fortify external and internal borders. This article analyses the way that contemporary crimmigration policy developments in Spain both reflect and help to produce the complex multiscalar dynamics that the nation must delicately balance in response to the challenges posed by Europeanization, economic crisis, and influences from below.
The United Kingdom has taken an increasingly punitive stance towards ‘foreign criminals’ using law and policy to pave the way for their expulsion from the country. Imprisonment, then, becomes the first stage in a complex process intertwining identity, belonging and punishment. We draw here on research data from two projects to understand the carceral trajectories of foreign-national offenders in the UK. We consider the lived experiences of male foreign-nationals in two sites: prison and immigration detention. The narratives presented show how imprisonment and detention coalesce within the deportation regime as a ‘double punishment’, one that is highly racialised and gendered. We argue that the UK’s increasingly punitive response to foreign-national offenders challenges the traditional purposes of punishment by sidestepping prisoners’ rehabilitative efforts and denying ‘second chances’ while enacting permanent exclusion through bans on re-entry.
Deportation of so-called "criminal aliens" has become the driving force in U.S. immigration enforcement. The Immigration Accountability Executive Actions of late 2014 provide the most recent example of this trend. Even for immigrants' rights advocates, conventional wisdom holds that if deportations must occur, "criminal aliens" should be the first to go. A voluminous "crimmigration" scholarship notes the ever-growing entwinement of criminal and immigration enforcement, but does not challenge this fundamental premise. This Article calls for a rejection of the formulation of the "criminal alien" the figure used to increasingly justify the preservation and expansion of a harmful immigration regime. It thus defends a normative claim that is starkly at odds with settled assumptions in advocacy and the literature: Deportations should not be distributed along the lines of migrant criminality. As a consequence, this Article argues that scholarship and advocacy should embrace "criminal aliens" as the priority group to defend against immigration enforcement efforts. This move is long overdue. Across the political spectrum, calls are being made to trim back the excesses of the criminal justice system, with both policing and incarceration practices suffering from crises of legitimacy. Yet the immigration system continues to layer the shortcomings and dysfunctions of the criminal justice system onto immigration enforcement efforts. The latest immigration reform effort, in the form of the Immigration Accountability Executive Actions, refines what it means to be a "criminal alien," thereby expanding partnerships with the criminal justice system and creating stronger nets of social control over broad swaths of the noncitizen population. While offering the possibility of relief from deportation to part of the undocumented population, the Executive Actions ultimately do not curb deportations. Rather, the programs refocus enforcement efforts on an ideologically acceptable target: the "criminal alien." To avoid this outcome, and to begin to dismantle immigrant vulnerability, the "criminal alien" paradigm must be challenged.
Over the last fifteen years there has been a significant growth in literature dealing with terrorism. Nevertheless, scholars within mainstream criminology have only recently begun to grapple with the problem of terrorism in a sustained fashion. In this provocative book the authors provide both an exposition of the contradictions that have emerged around the regulation of terrorism and an incisive analysis of the questions that the management of terrorism poses for the discipline. Focusing primarily on the processes and practices that have emerged in the United States and the United Kingdom, the book provides a critical account of the political construction, mediation and regulation of terrorist threat since the events of 9/11. The authors explore the ways in which new institutional modes of risk assessment based on the principle of pre-emption have impacted on individuals targeted by them. Noting the dilemmas produced by the pre-emptive turn, the authors also elucidate more recent moves to develop the idea of resilience in counter-terrorism and security policy. This book will be suitable for academics and students interested in political violence, terrorism, geopolitics and risk, as well as for practitioners and experts working in the security industries.
This article calls for studies of migration, borders and deportation to bring the practices and dynamic spaces of transportation more fully into the research frame. While modern deportation is unthinkable without vehicles, transport is a black box for the interdisciplinary literature on the state-enforced movement of population. This article focuses on deportation by air and engages largely with policies and practices relating to the UK deportation experience. It has two aims. First, to offer a critical analysis of the techniques and tactics that are used to turn commercial and charter flights into machineries of deportation. Second, to show that aviation is not a mere instrument that puts deportation policy into practice, but, like other material places in the deportation and detention world, an irreducible zone of knowledges, tactics, and politics. A proper understanding of the deportation complex is radically incomplete without an account of the mobile places of transportation.
This book examines the role of criminal law in the enforcement of immigration controls over the last two decades in Britain. The criminalization of immigration status has historically served functions of exclusion and control against those who defy the state’s powers over its territory and population. In the last two decades, the powers to exclude and punish have been enhanced by the expansion of the catalogue of immigration offences and their more systematic enforcement.
For more than a century, innumerable studies have confirmed two simple yet powerful truths about the relationship between immigration and crime: immigrants are less likely to commit serious crimes or be behind bars than the native-born, and high rates of immigration are associated with lower rates of violent crime and property crime. This holds true for both legal immigrants and the unauthorized, regardless of their country of origin or level of education. In other words, the overwhelming majority of immigrants are not “criminals” by any commonly accepted definition of the term. For this reason, harsh immigration policies are not effective in fighting crime.
Unfortunately, immigration policy is frequently shaped more by fear and stereotype than by empirical evidence. As a result, immigrants have the stigma of “criminality” ascribed to them by an ever-evolving assortment of laws and immigration-enforcement mechanisms. Put differently, immigrants are being defined more and more as threats. Whole new classes of “felonies” have been created which apply only to immigrants, deportation has become a punishment for even minor offenses, and policies aimed at trying to end unauthorized immigration have been made more punitive rather than more rational and practical. In short, immigrants themselves are being criminalized.