Borders of punishments: criminology and migration control

Migration control increasingly resembles crime control, what’s worse is that migrants are not afforded the same long-fought for procedural safeguards as suspected criminal offenders. Ultimately, history tells us that this is a matter of concern for us all, foreigner and citizen alike

Lea Sitkin
11 May 2012

Whichever way you swing, when you care about migration control every week feels like an -edge-of-your-seat TV drama. Last week was no different. The second round of the French election saw a battle for the hearts and minds of the first round “Le Pen” vote, with Hollande’s anti-austerity manifesto finally winning over Nicolas Sarkozy’s “get tough on immigrants” mantra on Sunday. On the same day in Greece, the ultra nationalist party Golden Dawn celebrated after exit polls showed them winning enough of the vote for them to gain parliamentary representation for the first time in Greek history. On Friday, three illegal immigrants tried and failed to elude capture in a raid in Malaysia by hiding under kongsi houses and in a hole under a chicken coop. In the USA, members of an Arizona- based vigilante group called “Border Guard” have vowed to continue their self-ordained mission of hunting undocumented immigrants and drug gangs despite the apparent murder-suicide of their leader, Jason “JT” Ready. Even as this article is being written or read, countless people are overstaying their visas, tearing up identity documents, being searched, arrested, prosecuted, detained and deported in a never-ending struggle over global mobility.

Against the backdrop of this everyday pathos, scholars of all ilks and from all over the world came to the Oxford University “Borders of Punishment” conference to discuss “the relationship between immigration control, citizenship and criminal justice” and to “connect criminological theory to migration studies”. Until relatively recently, criminology has not had much to say about questions of migration control. This is not very surprising when one considers traditional criminology’s narrow focus on “street crime” (theft, assault, rape, murder) and criminal justice system institutions (“police, courts and prisons”). However, people in general – and criminologists in particular - don’t like being kept in windowless boxes. Hence the growing number of scholars who have started in recent decades to interrogate this disciplinary boundary, ranging from Foucault’s analysis of the diffuse process of producing good citizens to Braithwaite's focus on business regulation. In a pleasing and neatly circular manner, criminology’s widening scope from a narrow focus on crime to the study of control, order and government pays homage to the original, 18th century idea of policing, incorporating duties as disparate as sanitation, tax collection, labour inspection and security.

Outside of the halls of academia, there is another, undoubtedly more profound reason for criminology’s newfound interest in migration control – namely, the understanding that at the level of real-life practices, migration and crime control have started to resemble one another more and more. This process has many facets: the rhetorical conflation of irregular migration, terrorism and organised crime and efforts to address these policy objectives simultaneously (as discussed by Maggie Lee and Darshan Vigneswaran); the introduction of criminal consequences for immigration offences (Lucia Zedner); rising rates of refusal for asylum seekers with alleged criminal backgrounds and the growing tendency for foreign nationals who have committed crimes to be expelled from a country - even when they have been born and bred there (Catherine Dauvergne). It is seen in the expansion of the detention estate (Mary Bosworth), the involvement of police in immigration enforcement and the extra-ordinary expansion in the range of coercive powers at immigration officials’ disposal today.

Participants also reflected on the ways in which changing police norms are reflected in immigration enforcement. Increased use of pre-emptive, actuarial techniques – such as the “intent management system” in Australia (Leanne Webber and Sharon Pickering)- to predict immigrants at high risk of becoming irregular mirrors a shift in the criminal justice system from a rehabilitation model to a ‘new penology’ based on the logic of risk management. Another parallel development is the increasing importance of private security providers and the use of sanctions and incentives to co-opt employers, universities, doctors, teachers, charities, benefit advisors and sometimes even family members to police for irregular migrants (Coretta Phillips). This is similar to the “responsibilisation” process described by criminologist David Garland, where the state encourages civic actors to police their own communities. Finally, both migration and crime control are differentiated by their growing emphasis on information sharing above and beyond any “on-the-ground delivery of visible police functions”(AKA the bobby on the beat). The role of technology becomes central, with the inherent danger is that border control problems will be framed in technical operability instead of normative terms.

What was just as interesting, however, were conference discussions of how criminalisation might not be an appropriate description for the things that are going on in migration control – and why that might be a bad thing. In practice, much of what happens in migration control is enacted under administrative law even in those instances when officials have recourse to criminal law. Why? Because it’s easier to do the things you want to do under administrative law. Centuries of bloody struggle have culminated in sturdy procedural safeguards for accused offenders in the criminal justice system, including a fair and unbiased trial and fair warning. These are central to the system’s legitimacy in the eyes of the public. However, as Mary Bosworth argues, no such requirement can be found in the immigration detention regime, where “justice” is meted out arbitrarily and is often inadequately justified. Hindpal Bhui relayed a shocking case where a man had been detained in the UK for 6 years pending removal. In the USA, procedural rights that have been revoked recently include the right to a judicial review of discretionary judgements pertaining to detention; release; or removal orders affecting persons having committed an aggravated felony (Chacon 2009). Also of note is the advent of mass deportations under the “Streamline” program.

How have we allowed this “asymmetrical incorporation of criminal justice norms” – in which migration control has witnessed an, featuring an increased use of crime control methods and techniques but without the same procedural safeguards? One reason is that detention and deportation are not meant as punishment by those who mete it out and therefore do not justify the safeguards against punishment given in the criminal justice system. They are neutral measures. However, Kanstroom suggests that “deportation is not a punishment because we do not view it as a punishment” is tautological and ignores the fact that these acts are certainly experienced as staggeringly punitive by individuals subjected to it. The same analysis could also be applied to detention. A second explanation is that criminal law starts from a presumption of membership whereas immigration law starts from an assumption of non-membership. The justification here would be: We treat them more severely because they are outsiders. The big question then becomes how do we conceptualise migrants: as guests, as potential members, as fellow human beings, as aliens?

Ultimately, it may well be that a migration focus creates its own “cul-de-sac”, (James Sheptiycki). The Immigration, Asylum and Nationality Act (2006) widened the category of “deportable” persons from naturalised citizens to all citizens who would not be left stateless, including persons born on British soil (Matthew Gibney). What this tells us is something we really should have picked up in history class, namely that the boundaries of membership and inclusion are ever-changing and that people who are safe today may not be safe tomorrow. Migration management’s distinguishing features are not immutably fixed to the migrants to whom they originally applied but may well spill over into the routine governance of the established community. In this context, borders are neither a physical space nor a control device aimed at foreigners. Instead, they are best understood as diffuse logics of differential exclusion that play out at many different points throughout our world and whose targets are always changing - albeit often along predictably racialised and gendered lines. Towards this end, the scholarship that seems to offer the greatest promise is one that broadly focuses on the different ways in which various systems of control and exclusion interact with each other to redraw the meaning of citizenship in the 21st century.

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