Crimmigration in the wake of Title 42’s Summary Expulsions

Abstract

Administrative and criminal courts work in tandem to manage illegal immigration. Although administrative courts regulate most immigration, criminal court responses to immigration have grown over time due to, amongst other things, administrative case processing inefficiency. In March 2020, when standing at the precipice of a global health pandemic, the administrative system changed drastically with the Trump administration’s invocation of Title 42. Title 42 enabled the federal government to circumvent existing administrative procedures by summarily expelling undocumented immigrants whose introduction “posed a serious danger of communicable disease.” In this new era, administrative deportations were quicker, cheaper, and more certain than ever before and the administrative system was, in many ways, different from the one politicians criticized as “broken” for decades. Drawing on general systems theory, this study theorizes and tests hypotheses surrounding how criminal illegal re-entry case processing, demographics, and sentencing changed in the face of Title 42. Results suggest that Title 42’s invocation resulted in a smaller, and more “selectively serious,” criminal illegal re-entry caseload. In a sense, these results are promising. The ways to achieve criminal justice reform may be broader than often considered and administrative processing provides a means for individuals to avoid collateral consequences associated with criminal convictions. Nevertheless, relative to the criminal system, the administrative system demands lower burdens of proof and grants less extensive procedural safeguards. Against this backdrop, more research is needed to understand whether expanding administrative capacity justifies its end.