Confronting Proxy Criminalization

Though state laws that directly criminalize unlawful presence have been struck down in the wake of the Supreme Court’s decision in Arizona v. United States, the criminalization of immigrants continues unabated. This Article examines one form of criminalization, criminalization by “proxy,” by which state and local governments are punishing conduct by undocumented immigrants linked closely to their social and economic survival. More ubiquitous than previously understood, such measures have eluded constitutional scrutiny, confounding the legally constructed line between “civil” and “criminal” and the legally constructed distinction between “immigration crimes” and “other crimes.” But, as this Article observes, they are no less pernicious than direct criminalization as a vessel for antipathy towards immigrants and their impact on communities no less profound. Using state driver’s license schemes as a paradigmatic example of subfederal proxy criminalization of migration, the Article argues that states should not be permitted to use their police powers to punish undocumented status simply because the laws they use are focused as a formal matter on conduct rather than status and tend to be rules of general applicability. The Article looks to the experience of another group that has long been subject to proxy criminalization at the local level — poor people who fall into homelessness — and courts’ analysis of local ordinances to limit their use of public space under the Eighth Amendment’s cruel and unusual punishment clause, to reveal transsubstantive lessons. It concludes by discussing the implications of a more nuanced conception of states’ role in the management of migration