I am part of a movement of people who believe that migration is a human right, that every person who chooses to live in the United States has a right to do so. To stand behind this moral philosophy is to advocate nothing more extreme than equality, and the legal view that the U.S. Constitution should protect all people within its jurisdiction equally. To accept otherwise is to circumvent peoples’ humanity, carve the liberty of immigrants out of the Constitution and create, as political philosopher Hannah Arendt warned, a caste of people without even “the right to have rights” — which happens to be a prescient description of current American immigration law.
Exempting human beings from Constitutional protections renders immigration law an Orwellian farce.
To examine just one way the law has carved the humanity of immigrants out of our constitution, consider the Fifth Amendment, which provides that no person shall be “put in jeopardy of life or limb” twice. This “double jeopardy” clause prohibits the state from punishing a person — not just a citizen — twice for the same crime. Freedom from double jeopardy is as old as ancient Greece and was an established part of British common law before James Madison enshrined it in the Constitution. But running afoul of this fundamental liberty, our immigration laws do not protect immigrants from double jeopardy.
In 1996, President Clinton signed the “Illegal Immigration Reform and Immigrant Responsibility Act,” which effectively legalized double jeopardy against many non-U.S. citizens. The act was possible due to legal sorcery that says deportation and immigrant prison (euphemistically called “detention”) are not punishment but merely “civil penalties.”
For the minority of non-U.S. citizens who are convicted of a crime, these 1996 laws punish them twice. First with their criminal sentence following conviction, just as citizens would be, but also with a subsequent immigrant-prison term followed by deportation. The Supreme Court recently held in Jennings v. Rodriguez that non-U.S. citizens’ second prison terms — after they have already served their criminal sentence but are awaiting an immigration hearing — may run indefinitely, in some cases lasting years. As a result, the second prison sentence for the same offense is often longer than the criminal sentence already served.
If being punished twice for the same crime offends Constitutional principles, punishing a non-U.S. citizen with prison even when they have committed no crime at all (also legal), should likewise outrage our fidelity to constitutional democracy. Normally, of course, the right to due process of law under the Fifth Amendment to the Constitution would prohibit imprisonment without criminal charge or conviction. The right to due process also prohibits the state from arbitrarily separating family members as a violation of the right to family integrity, as the Supreme Court held in Moore v. City of East Cleveland, Ohio. But when the state can pretend that “detention” and deportation are not punishment, or that deportees are not entitled to family integrity, then it can legally take away all sorts of rights. Exempting human beings from Constitutional protections renders immigration law an Orwellian farce.
Despite legal fiction to the contrary, second-prison and deportation are punishment just as surely as a cage is the opposite of freedom, and any person who claims they would not find prison and family separation punishing if subjected to it themselves is either lying or delusional. Even the Supreme Court, in Galvin v. Press, broached the absurdity of pretending deportation is not punishment, finding that deportation may “deprive a [hu]man ‘of all that makes life worth living,”’ and “is a drastic measure and at times the equivalent of banishment or exile.” Yet, despite admitting that deportation was “close to punishment,” the high court ultimately upheld the “civil penalty” legal fantasy, allowing for Congress to call prison something it is not.
Our legal inability to speak truthfully about liberty has enabled Immigration and Customs Enforcement (ICE) to punish people multiple times for the same offense. Take the case of activist Ravi Ragbir, to name just one of thousands of people ICE is currently trying to deport under the 1996 double jeopardy laws. Ragbir was convicted of wire fraud, then after serving his criminal sentence, was re-apprehended, re-imprisoned for some two years, re-re-imprisoned several years later in January 2018, and only after a Federal Court compelled his release, now faces the punishment of deportation and separation his spouse and daughter. Were Ravi born in the United States, after duly serving his time, he would have been left alone or praised for his decade of tireless service to the community since his release. Instead, his life has been criminalized in perpetuity. That is simply anti-Constitutional.
When you hear far-right propagandists bark ‘so-and-so immigrant was released after committing such-and-such crime,’ it suggests that when convicted of a crime, the courts choose between deportation or release without any punishment at all. This rhetoric is designed to misinform. Such people serve their sentence, just as citizens do, just as Ragbir did, then are released, just as citizens are. Then, unlike citizens, they are re-arrested by ICE, made to serve their second prison sentence, which may be indefinite or repeated, and only then are deported.
Worse than a lie, this rhetoric conceals the 1996 double jeopardy laws, deliberately obscuring the fact that people are being punished twice, sometimes indefinitely, for the same offense. This glib sleight of hand is typical of the duplicitous misinformation on which both Republicans and Democrats now rely to support the brutality they call immigration policy.
In immigration court, ICE. agents will claim that giving non-U.S. citizens their freedom, even after they have already served their time, is “dangerous.” But the criminal justice system, by ordering their release, necessarily disagrees. Principles of ordered liberty as old as ancient Greece disagree. James Madison disagrees. What is dangerous, to a free society anyway, is repeated or indefinite punishment for the same offense, or for no offense at all. That is why the Constitution, in prohibiting it, regards arbitrary or repeated or indefinite imprisonment as inherently dangerous to democracy.
True equality means that if there is to be punishment, the non-U.S. citizen and the citizen should be punished equally for the same crime and afforded equal due process. It is not radical to take that position because equality is not radical. It is extremist and anathema to constitutional democracy to reject it.
No progressive should sit still when calls to abolish double jeopardy are labeled “weak” on crime. “Tough on crime” has always meant weak on the Constitution. Abolishing double jeopardy for immigrants is tough Constitutionalism. Failure to restore equal due process is being weak on liberty.
Democratic members of Congress, if they do not endorse and defend the abolition of double jeopardy and the restoration of equal due process, are derelict in their duty to defend the rights of immigrants and disingenuous when claiming to value equality or family integrity. We should demand that our representatives in Congress propose and support, unapologetically, the repeal of the 1996 double jeopardy laws. Equality and liberty demand nothing less.
Steven Sacco is a practicing immigration attorney with the Legal Aid Society of New York City and a board member of the Free Migration Project. Opinions are his alone.
Photo: Immigration activist Ravi Ragbir with his wife and supporters ahead of a 2017 meeting with Immigration and Customs Enforcement. Credit: Peter Rugh.