Less Enforcement, More Compliance: Rethinking Unauthorized Migration

A common assumption underlying the current public discourse and legal treatment of unauthorized immigrants is that unauthorized immigrants are lawless individuals who will break the law—any law—in search of economic gain. This notion persists despite substantial empirical evidence to the contrary. Drawing on original empirical data, this Article examines unauthorized immigrants and their relationship to the law from a novel perspective to make two major contributions. First, I demonstrate that unauthorized immigrants view themselves and their noncompliance with U.S. immigration law in a manner that is strikingly different from the prevalent view of criminality and lawlessness found in popular and legal accounts. Unauthorized immigrants’ decisions to cross the border—and to remain in the United States despite their lack of legal status—are likely shaped in large measure by their distinct normative views of themselves and their economic situations, as well as their perceptions about the lack of legitimacy of U.S. immigration law. Second, I show why understanding these views and values of unauthorized immigrants may have significant implications for promoting voluntary compliance with U.S. immigration law.

Decriminalization, Police Authority, and Routine Traffic Stops

Although there is no universal definition of “decriminalization,” approaches to decriminalization largely focus on modifying how conduct is sanctioned or punished. This Article argues that there is a need to broaden approaches to decriminalization beyond sanctions and give more consideration to the other ways in which criminalization fosters state control over civilians—including police authority and discretion. Decriminalization should restrict opportunities and methods for the state to control civilians in ways that (1) facilitate their entry into, or continued contact with, the criminal justice system, and (2) leave them vulnerable to state-imposed privacy, liberty, dignitary, and physical harms that arise from contact with the criminal justice system and actors. These goals are undermined when decriminalization does not capture police authority and discretion.

To illustrate these points, this Article focuses on the most common form of civilian interaction with the police—the routine traffic stop. Through original research, this Article shows that since 1970 twenty-two states have decriminalized minor traffic violations by removing criminal sanctions, reclassifying the violations as noncriminal offenses, and streamlining their adjudication to the administrative realm. These decriminalization reforms have centered on modifying sanctions and have rarely restricted police authority and discretion in routine traffic stop settings.

This Article then exposes and examines an asymmetry in the criminal justice process that emerges from sanction-focused approaches to decriminalization, and appears in traffic decriminalization trends. Specifically, the focus on sanctions in traffic decriminalization reforms has enabled states to retain access to an expanding set of crime-fighting tools via the policing of decriminalized traffic violations to further their crime-control policies (such as drug law enforcement). This access, however, comes at the expense of funneling drivers and passengers into the criminal justice system, and making all drivers—whether innocent or guilty of nontraffic crime—more vulnerable to privacy, liberty, dignitary, and physical harms that stem from policing in traffic settings. These results, which advocates of decriminalization should seek to avoid, especially affect people of color and other minority communities that are more vulnerable to concentrated police surveillance and pretextual traffic stops.

Not Whether Machines Think, But Whether Men Do

Drones “allow for the most discriminating uses of force in the history of military technology,” and can thus be a profound humanitarian advancement in warfare. State actors alone, however, can actualize this potential. Although the United States complies with international humanitarian law from strike authorization through strike execution within the Afghanistan theatre of war, its methods for evaluating and reporting collateral damage caused by drone strikes—including presuming every deceased “military-aged male[] in a strike zone” to have been a “combatant[]”—do not comply with international law. The United States must amend its policies to uphold its obligations of forming customary international law that mandates a humane use of drones in theatres of war, and protecting its ground troops from distrust and violence predicated on inaccurate reporting of collateral damage.