The Injustice of Criminalizing Irregular Immigration

Post by Alessandro Spena, Professor of Criminal Law, University of Palermo

As increasing numbers of criminal lawyers explore the intersections between immigration and criminal law, it is important to establish the normative boundaries of legislation and practice.

            Consider if these are men.

Italy. The night between Thursday 3 and Friday 4 October 2013. A boat full of migrants coming from various African and Asian countries goes up in flames and sinks off Lampedusa. Approximately 400 of them die. Those who survive are rescued and brought to Sicily.The Italian government’s reaction to this tragedy is deeply contradictory. On the one hand, it displays a seemingly compassionate apparatus of mourning and commiseration for the dead. When it comes to the survivors, however, the attitude becomes completely different: criminalization, not commiseration. The survivors are immediately prosecuted for the crime of illegal immigration; moreover, they are promptly shut in so-called Centres for Identification and Expulsion, overcrowded spaces in which people lie in pitiful hygienic conditions. To add insult to injury, they are refused permission to attend the funerals of their friends and relatives who died in the tragedy.

Indeed, criminalization has now become, at least in the west, the default way of dealing with irregular immigration. Now more than ever states tend to exercise their (alleged) right to close and control their borders not only by establishing limits to legal entrance in their territories, but also by enacting and enforcing criminal norms against those foreigners who violate these limits. Think of Italy and the Netherlands to make but two European examples: both countries, while being traditionally ‘tolerant’ with immigration, have recently (in 2009 and in 2012) made irregular immigration a crime.

There are two main reasons to complain about this trend. First, the crime of illegal immigration does not meet the standards of a just criminalization: while criminal law’s proper target is individual conduct inasmuch as it is wrongful and/or harmful, illegal immigration instead, insofar as it is taken into account as the conduct of an individual, is neither wrongful nor harmful—at least, not enough to justify criminalization. I understand this is a difficult topic involving a very complex set of moral and political considerations. I have no space here to dwell on it, but I do so elsewhere in a paper I presented in a workshop recently held in Minneapolis.

Second, in the context of illegal immigration criminal law is used in an improper way. Criminal law should be ‘inclusive’: it should treat the author of the crime as a rational and responsible subject, it should treat him/her according to the public moral standards of the relevant community, so as to ‘include’ him/her into the community’s ‘moral sphere.’ The criminalization of illegal immigration is, instead, a merely ‘excluding’ set of practices—basically geared to banishing immigrants, not certainly to including them into the community.

This approach, in turn, underlies a questionable view of the ‘authors of the crime of illegal immigration’ (i.e., of illegal immigrants): they are not seen as rational and responsible subjects with whom the state is called to establish some kind of moral dialogue; they are seen, instead, as a mass of ‘non-humans,’ a horde, to manage collectively, to police, as if they were some sort of epidemic or natural disaster. While, in sum, criminal law should address people as individual, rational, responsible humans, the criminalization of illegal immigration addresses illegal immigrants as a pack of non-humans to stigmatize as ‘criminals’ and to expel.

Consider if these are men…

For other work by Alessandro see here.

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How to cite this blog post (Harvard style):

Spena A (2013) The Injustice of Criminalizing Irregular Immigration. Available at:  http://bordercriminologies.law.ox.ac.uk/criminalizing-immigration/‎ (Accessed [date]).