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Abstract:

The federal courts are experiencing a shift in their caseload as immigration cases increase, comprising more than a third of the felony criminal docket and more than half of all filed cases. Nearly half of those prosecuted for felonies in federal court are now non-U.S. citizens. This change in caseload and defendant citizenship status has profound implications for federal procedural norms and practice. The paradigmatic federal criminal case is no longer a white-collar or mafia prosecution, but rather the prosecution of a poor immigrant of color for a low-level border offense.

Streamline prosecutions, where defendants charged with misdemeanor immigration crimes, are counseled, plead guilty, and sentenced in mass proceedings are now a frequent feature of federal criminal practice. These proceedings provoke fundamental questions about due process and the right to counsel.

Likewise, “fast-track” cases where defendants waive procedural rights for expediency have also increased. The 4th Amendment provides little protection in border cases or ICE arrests. Bail norms are undermined when defendants are subject to detainment even if they post bond. Our conception of the presumption of innocence is challenged in illegal (re)entry cases where alienage is nearly synonymous with guilt.

This article documents these trends and examines how the growing immigration docket and the increase in non-U.S. citizen defendants are eroding important constitutional and procedural norms causing debasement of the courts and infiltrating federal case law to the detriment of citizens and non-citizens alike.

Professor Amy Kimpel is an Assistant Professor of Clinical Legal Instruction and the Director of the Criminal Defense clinic at the University of Alabama School of Law. Her scholarship focuses on criminal law and the intersection of criminal and immigration law. 

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