Judicial Discretion as Colonial Power in Immigration and Criminal Courts

• In Event: 20201 - Laws and Criminalization

Abstract

In this paper, we use court observations in both the criminal legal and immigration courts to examine how judicial discretion and state authority shape compliance and punishment, and how, in doing so, these mechanisms (re)produce colonial powers veiled under carcerality. While existing works have examined the ties between immigration law and criminal law–mainly through the examination of the criminalization of immigration (crimmigration), immigrants, and immigrant communities, we take a new angle to analyze the judiciary system within criminal legal and immigration systems in parallel. Although criminal courts and immigration courts are viewed as separate bureaucracies, a parallel examination of both allows us to document and analyze the similarities, fusions, and tensions between the two systems. In criminal legal and immigration systems, individual state actors ranging from judges to officers to caseworkers have the discretion to interpret the meaning of compliance and the authority to enforce it. The courts are one site in which the mechanisms of carcerality and colonial power are on display. In both the criminal legal and immigration systems, the courts wield complete authority over the freedom, liberty, and autonomy of the individuals coming before them as “criminal defendants” or “illegal immigrants.” More specifically, judges exercise unilateral power to use their discretion in determining whether an individual will be placed on a form of community supervision, incarcerated/detained, or deported from the US. Within this discretion, we can see evidence of the mechanisms underlying carceral logics and colonial powers, which we detail below.

Authors

• Andrea Gomez Cervantes, Wake Forest University

• Brittany Battle, Wake Forest University

• Dimarvin Puerto, Wake Forest University