Class 12: Deportation Federalism
As we saw last class, whether a person’s state criminal conviction makes them deportable depends on how the state legislature chose to draft the state’s criminal code. That gives state legislators some power to shape the scope of deportation policy. But state power to shape immigration policy isn’t limited to the legislative assembly.
Reading:
Lopez & Carachuri-Rosendo (717-23)
Padilla v. Kentucky (668-79)
Sentence modifications (683-85 and Thomas and Thompson)
As you read, consider the following questions:
In Padilla v. Kentucky, the Court reads the Sixth Amendment to require that criminal defendants receive advice about the deportation consequences of their convictions. Yet there is no constitutional obligation to provide advice about other collateral consequences. Is this treatment of deportation consistent with the way deportation was conceptualized in cases like Fong Yue Ting?
On Justice Stevens’s account in Padilla v. Kentucky, why is it so crucial that criminal defendants have information about the potential deportation consequences of the charges against them?
Consider two different ways in which citizenship and immigration status could be treated in the criminal justice system. First, we could ask criminal justice actors (police, prosecutors, judges, etc) to ignore immigration status—never asking about it, and never acting differently on account of it. Second, we could ask criminal justice actors to treat immigration status just like any other factor when making a decision—such as a decision about what offenses to charge, about what sentence to recommend, or about whether to pursue pre-trial detention.. Which approach is more appealing?
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