Unjust Deserts: How the Modern Deportation System Lacks Moral Credibility

Linus Chan & Kathryn Burkart
Date of Publication: 
March, 2018
Source Organization: 

‘Unjust Deserts: How the Modern Deportation Systems Lacks Moral Credibility’ analyzes the lawfulness of mass incarceration of undocumented immigrants and the subsequent resistance to deportation by utilizing theories from criminal justice. Drawing upon research from prominent criminologists, the article argues that laws are likely to be followed when the community considers them morally credible and when they are consistent with existing cultural norms. When laws are considered arbitrary in nature, such as those with racist undertones or those targeting vulnerable individuals based on low economic status, communities tend to not comply with these laws as they lack moral credibility. In response to detention rates nearing 400,000 individuals per year, there has been widespread noncompliance with federal immigration law. The authors argue that the deportation system lacks moral credibility because it appears racialized, with Latinos constituting over 90 percent of deportees, lacks transparency and fails to allow for judicial discretion on a case by case basis. Moreover, laws are generally followed when there is a fair and equal interpretation of the law, including punishment proportional to the severity of the offense. Immigration law is overwhelmingly complex and often requires consultation with an immigration attorney specialized in crime-based removal to interpret where waivers from removal are often arbitrarily accessible. The resulting decision to grant relief from deportation or to remove the individual is a binary decision and does not allow a proportional punishment as is utilized in other offenses within the criminal justice system. In conclusion, the authors argue that the approach to deportation must be altered to achieve greater fairness and to avoid prolonged detention as immigrants pursue legal remedies against deportation. (Mia Fasano for The Immigrant Learning Center’s Public Education Institute) 

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Chan, L. & Burkart, K. (2018). Unjust Deserts: How the Modern Deportation System Lacks Moral Credibility. Ohio State Journal of Criminal Law, Forthcoming. Available at SSRN: from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3138988