I don't have time to fully flesh this out, but I just wanted to note it down while it was still in my head. A common refrain regarding illegal immigrants is that they are all criminals, because they broke the law in coming here or overstaying their visas, so they should all be deported. Because they are criminals.
I've been pondering about whether all illegal immigrants really are criminals, in the real sense of the word. And, if they are, shouldn't they get all the process that real alleged criminals get?
Basically, in all other parts of law, there is a dichotomy between civil and criminal. To illustrate, I start with the difference between a traffic violation and a traffic crime. A traffic violation is a civil infraction, and the penalty is usually a fee. Classic examples would be speeding, or driving without insurance. You've broken the law, technically, but you haven't really endangered anyone else. A traffic crime is a criminal offense for which the punishment could include jail time (though often also includes fines). Examples would include a hit and run, drunk driving, or reckless driving. The difference seems to be the higher degree of potential harm to society. Criminal defendants are entitled to all sorts of procedural protections, including the right to counsel at the government's expense.
It seems to me that in immigration, the civil/criminal distinction has been completely lost. In far right rhetoric, technically civil violators (I'm not talking about the ones who perpetrate fraud, or engage in illegal re-entry, which are, indeed, crimes) like visa overstayers are now criminals. A person who sneaks across the border is a criminal. They've broken our laws! Even if they haven't hurt anyone, they are criminals!
Yet these "criminals" lack all the procedural protections that criminals have. And, unlike the norm with respect to civil violators, they are subject to oftentimes prolonged detention (and infringement of their personal liberty -- frequently thrown into jails next to real criminals), and torn apart from the families that they have established here.
This is major shaft-age! Illegal immigrants get none of the criminal protections, and all of the criminal punishment, oftentimes for mere civil violations, which are supposedly not punitive.
It seems to me that the right approach to this should be to truly institute the civil/criminal dichotomy in immigration law. Violations that pose little harm to society -- overstaying your visa, sneaking across the border -- would be truly civil, and treated as such. They would be subject to a fine - you could make it heftier to increase the deterrence factor. On the other hand, there could be criminal immigration violations (committing a crime while out of status, etc.), the penalty for which would be detention, and deportation, but with the full panoply of criminal protections.
As it is, the civil/criminal distinction is completely lost, and law is completely divorced from both reality and from normative considerations.
How about that?
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