It’s no longer news that migrants frequently find themselves being prosecuted for federal immigration crimes. Illegal entry and illegal reentry regularly top the list of most prosecuted and convicted federal offenses. Meanwhile, DHS makes much of its reliance on local law enforcement officials to identify potentially removable individuals. Programs like Secure Communities and 287(g) have become part of the public conversation about crimmigration law even if other local-state-federal initiatives like the Criminal Alien Program and the Criminal Alien Removal Initiative remain largely unknown.
Combined, these trends reflect the growing intertwining of criminal law and immigration law that academics, including me, have been tracking for several years and with which crImmigration.com readers are quite familiar. One recurring characteristic of crimmigration law is that immigration law enforcement increasingly resembles criminal law enforcement, but constitutional norms intended to limit the government’s ability to pry into our lives and deprive us of our liberty by incarcerating us don’t make it into immigration proceedings. See Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms, 64 Washington and Lee Law Review 469 (2007). Another feature—and one that has received less scholarly attention—concerns criminal proceedings themselves. How does more steadfast enforcement of immigration law affect criminal proceedings?
In a new article, SUNY Buffalo law professor Anjana Malhotra jumps headlong into this aspect of crimmigration law with a thorough analysis of crimmigration law’s impact on the Fifth Amendment privilege against self-incrimination and its landmark interpretation in Miranda v. Arizona, 384 U.S. 436 (1966). Her article, The Immigrant and Miranda, 66 SMU Law Review 277 (2013), dives deep into the weeds of the relevant case law while stopping to reflect on how judicial developments connect to troubling trends indicative of an erosion of criminal procedure norms.
Malhotra’s understanding of Miranda is second-to-none. She maneuvers through an impressive barrage of cases from the Supreme Court and multiple federal circuits detailing how they follow or conflict with Miranda’s animating principles. In Miranda, she explains, the Court sought to bring uniformity and reality to difficult questions facing courts about when suspects were entitled to learn of their constitutional rights. Just tell everyone in custody prior to interrogating them, the Court essentially instructed police officers.
Two years later, Malhotra adds, the Court returned to Miranda in a case with enormous significance in the age of crimmigration law. In Mathis v. United States, 391 U.S. 1 (1968), the Court held “that the distinction of whether an initial custodial interrogation is intended for a civil or criminal investigation does not control the analysis for Miranda purposes if the investigation could lead to criminal charges….” Malhotra, supra at 281.
Despite the Court’s clear instruction in Mathis, lower courts have taken a different approach. Instead of engaging in an objective inquiry about whether a suspect is in custody and under interrogation, “many lower courts have applied an unusual subjective analysis to determine whether Miranda rights apply to dual civil-criminal immigration questioning….” Id. Courts have honed in on a quirk of Miranda case law: “Miranda warnings generally do not need to be given prior to asking a suspect booking questions about routine identifying information ‘normally attendant to arrest and custody’ because such questions do not usually elicit incriminating responses.” Id. at 288 (Rhode Island v. Innis, 446 U.S. 291 (1980) and Pennsylvania v. Muniz, 496 U.S. 582 (1990)). But, Malhotra goes on, the Court has also “made clear that Miranda applies to booking questions designed to elicit incriminating responses.” Id. (discussing Muniz, 496 U.S. at 602 n.14).
This, of course, is always a possibility for migrants questioned by ICE or local cops about their immigration status. Lack of authorization to be in the United States is a violation of civil immigration law, but it can also form the basis of a criminal offense. Many circuits disregard this key feature of immigration law and instead ask whether booking information that produced incriminating information about immigration status was sought for routine recordkeeping purposes or as part of a criminal investigation. Framed this way, the result is that migrants frequently reveal damaging information about themselves to police officers without having been provided the notice of their constitutional rights that Miranda otherwise requires. By adopting this interpretation of Miranda, Malhotra concludes, circuits courts “threaten to create dual-track criminal procedure safeguards where one’s Miranda rights depend in part on one’s status.” Malhotra, supra, at 281.
Malhotra expertly guides her readers through this complicated case law covering all the key Supreme Court decisions and too many circuit court cases to count. That alone makes this article an important contribution to our understanding of crimmigration law and ensures that it makes an appearance in my Criminal Procedure course next fall.
Where Malhotra shines most brightly, though, is in her ability to contextualize this unique departure from Miranda as applied to migrants within the budding crimmigration law enforcement system. “By departing from well-established Miranda principles for immigrants,” she writes, “courts are compounding institutional structures that are incentivizing these primary actors to deprive noncitizen suspects of their criminal procedural protections on a broad scale.” Malhotra, supra, at 323.
Though she notes the increasing reliance on federal criminal prosecutions to punish immigration law violations, she takes special aim at a relatively unknown funding mechanism called the State Criminal Alien Assistance Program (SCAAP). Run by the Justice Department, SCAAP reimburses state and local governments for incarcerating certain unauthorized migrants while serving “their state criminal sentences—detention costs that local agencies would normally pay for inmates, regardless of immigration status.” Malhotra, supra, at 328. Despite having failed to receive the attention of other crimmigration enforcement initiatives, SCAAP is rather significant. The federal government has allocated roughly $4.65 billion to it, she explains. Id. at 330.
This amount of money, Malhotra rather convincingly claims, is a power incentive for local police departments to help the federal government enforce immigration law. Id. at 332. Moreover, because “[l]ocal law enforcement officials receive a considerable amount of money for each day they detain a qualifying ‘criminal alien,” SCAAP “creat[es] strong incentives to interrogate as many individuals as possible about their immigration status to maximize the number of qualifying aliens referred to ICE.” Id. In effect, SCAAP provides a financial incentive to question people suspected of engaging in criminal activity about their immigration status and lower courts’ misguided interpretation of Miranda’s booking exception gives them the legal wiggle room to do so.
This is a critical insight. What Malhotra’s analysis shows is that crimmigration policing isn’t just affecting migrants and their families. It’s actually altering constitutional criminal procedure and doing so on a large scale. This ought to concern everyone who cares about equal treatment under the law.
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