Citizenship and Severity: Recent Immigration Reforms and the New Penology

Over the past twenty years, scholars of criminal law, criminology and criminal punishment have documented a transformation in the practices, objectives, and institutional arrangements underlying a range of criminal justice system functions that are at the heart of penal modernism. In contrast to the preceding eighty years of criminal justice practices that were progressively more modern in their belief in the rationality of the criminal offender and their concern for enhancing civilization through rehabilitative responses to criminality, these scholars note that since the mid-198\u27\u270s the relatively settled assumptions about the framework that shaped criminal justice and penal practices for nearly a decade were abruptly thrown into reverse. Major shifts in policy generated by federal immigration reform legislation have likewise created a sense of crisis that pervades the practice of immigration law. The uncertainty produced by sweeping reform legislation enacted at a rapid pace has confounded attorneys and judges alike as they struggle to discern applicable legal standards and procedures with a backlog of cases requiring their urgent attention. As immigration reforms increasingly enhance the role of law enforcement and incorporate criminal penalties, the regulation of non-U.S. citizens - particularly those with criminal convictions in their pasts - has become intimately involved in crime control. Immigration control is increasingly adopting the practices and priorities of the criminal justice system. Many scholars and commentators are describing this unprecedented intimacy as the “criminalization of immigration law.” It has motivated immigration scholars to document harsh, law enforcement-focused reforms in the treatment of non-U.S. citizens and the impact of these reforms on immigration procedures and practices. This scholarship largely documents the reforms and their consequences in much the same way as crime scholars initially focused on documenting the fact that a shift in the balance of crime legislation of great significance had occurred. Although the horrific events of September 11, 2001 immediately produced an urgent new agenda for controlling crime within immigration law, the reasons underlying such heavy reliance upon punitiveness within immigration reforms of the 198\u27\u270s and 199\u27\u270s are hardly self-evident. This paper seeks to clarify why these reforms are taking place, why they are taking place at this historical juncture, and why they rely heavily on criminal punitiveness by drawing upon the new penological literature that seeks to explain the broader significance of changes in crime control strategies and practices over the past three decades. In doing so, this paper will clarify the relationship between recent, harsh immigration reforms adopted both pre- and post-9 11 and the severity revolution within crime control that has been documented by crime scholars