Resurgent rhetoric equating border crossing with invasion and migrants with criminality has fueled a new wave of state criminal-immigration legislation. Although scholars have extensively critiqued crimmigration—the long-running fusion of immigration enforcement and criminal law—this Article identifies a distinct escalation. Invoking dehumanizing notions of “illegality,” states are directly criminalizing undocumented presence and targeting noncitizens for unprecedented punishments. The Article terms this state-driven punitive project the War on Immigrants: states seek to transform the criminal system into a central instrument of immigration control through a new crimmigration regime that destabilizes immigration federalism, distorts criminal law, and erodes individual rights.
This Article is the first to critically examine and evaluate this emerging legislative trend. It develops a typology of four legislative models that collapse the lines between criminal and immigration law. Through distinctive mechanisms, each model converts undocumented presence into a state criminal offense punishable by actual or effective banishment. The Article argues that these new statutes distort the framework of cooperative federalism and imperil fundamental constitutional principles. By criminalizing immigration status and authorizing discriminatory enforcement, they erode foundational protections for criminal defendants, give legal cover to racialized profiling for immigration status and impose draconian punishments grossly disproportionate to any underlying conduct. Moreover, by embedding civil immigration violations into state criminal law, these statutes fragment federal immigration policy and fl out established international legal norms.
In exposing how these new state-level off enses amplify the existing dangers of crimmigration, this Article challenges the constitutionality and efficacy of intertwining migration regulation with the criminal legal system. It argues that decoupling immigration and criminal law is essential to restoring constitutional safeguards, urging repeal of statutes that criminalize border crossing and enlist states in immigration enforcement. Ultimately, it emphasizes the imperative of preserving constitutional protections for all who call this country home.
