Second Chances in Criminal and Immigration Law

This Essay publishes the remarks given by Professor Ingrid Eagly at the 2022 Fuchs Lecture at Indiana University Maurer School of Law. The Fuchs Lecture was established in honor of Ralph Follen Fuchs in 2001. Professor Fuchs, who served on the Indiana University law faculty from 1946 until his retirement in 1970, was awarded the title of university professor in recognition of his scholarship, teaching, and public service. In her Fuchs lecture, Professor Eagly explores the growing bipartisan consensus behind “second chance” reforms in the state and federal criminal legal systems. These incremental reforms acknowledge racial bias, correct for past injustices, and reward personal growth. Drawing on legal doctrine, her research, and examples from practice, she outlines how the immigration system—where the need for reform is also urgent—would benefit from similar second chance reforms to start to address the legacy of racism and exclusion that have built today’s criminalized immigration system. First steps could include expanding immigration judge discretion to evaluate individual circumstances, reinvigorating state pardon processes, and expanding access to counsel in immigration proceedings

The Movement to Decriminalize Border Crossing

Should it be a crime to cross the border into the United States? This Article explores the growing resistance to the politics and practices of mass border criminalization. In doing so, it makes three central contributions. First, it dissects the varied strands of the punitive practices of the U.S. Department of Justice, including policies of zero-tolerance prosecution for first-time unauthorized border crossers and enhanced punishments for those who reenter after deportation. Second, it traces how growing public awareness of the previously hidden practices occurring in Border Patrol holding cells and federal criminal courts along the Southwest border have sparked new and outspoken criticism of the illegal entry and reentry laws. These laws have resulted in the forced separation of families, interfered with the rights of asylum seekers, and fostered a racially segregated and substandard court process. Third, this Article analyzes the nascent movement by immigrant rights groups, prominent politicians, and grassroots coalitions of community members to decriminalize border crossing by repealing Sections 1325 and 1326 of the immigration law that have punished unauthorized border crossing since 1929. Although critics maintain that such a legislative change would create so-called open borders, irregular entry would remain a civil violation of the immigration law and be handled by the civil deportation system. As this Article argues, the call to decriminalize border crossing exposes the racialized harm imposed by current policing practices and inspires discussion of additional reforms that would make the civil side of immigration law more humane and equitable

Remote Adjudication in Immigration

This Article reports the findings of the first empirical study of the use of televideo technology to remotely adjudicate the immigration cases of litigants held in detention centers in the United States. Comparing the outcomes of televideo and in-person cases in federal immigration courts, it reveals an outcome paradox: detained televideo litigants were more likely than detained in-person litigants to be deported, but judges did not deny respondents’ claims in televideo cases at higher rates. Instead, these inferior results were associated with the fact that detained litigants assigned to televideo courtrooms exhibited depressed engagement with the adversarial process—they were less likely to retain counsel, apply to remain lawfully in the United States, or seek an immigration benefit known as voluntary departure. Drawing on interviews of stakeholders and court observations from the highest-volume detained immigration courts in the country, this Article advances several explanations for why televideo litigants might be less likely than other detained litigants to take advantage of procedures that could help them. These reasons include litigants’ perception that televideo is unfair and illegitimate, technical challenges in litigating claims over a screen, remote litigants’ lower quality interactions with other courtroom actors, and the exclusion of a public audience from the remote courtroom. This Article’s findings begin an important conversation about technology’s threat to meaningful litigant participation in the adversarial process

Lexipol\u27s Fight Against Police Reform

We are in the midst of a critically important moment in police reform. National and local attention is fixed on how to reduce the number of people killed and injured by the police. One approach—which has been recognized for decades to reduce police killings—is to limit police power to use force. This Article is the first to uncover how an often-overlooked private company, Lexipol LLC, has become one of the most powerful voices pushing against reform of use-of-force standards. Founded in 2003, Lexipol now writes police policies and trainings for over one-fifth of American law enforcement agencies. As this Article documents, Lexipol has refused to incorporate common reform proposals into the policies it writes for its subscribers, including a use-of-force matrix, policies requiring de-escalation, or bright-line rules prohibiting chokeholds and shooting into cars. Lexipol has also taken an active advocacy role in opposition to proposed reforms of police use-of-force standards, pushing, instead, for departments to hew closely to Graham v. Connor’s “objectively reasonable” standard. Finally, when use-of-force reforms have been enacted, Lexipol has attempted to minimize their impact. Local governments, police departments, and insurers have long viewed Lexipol as a critically important partner in keeping policies lawful and up to date. This Article makes clear that they should take a closer look. Lexipol’s aggressive efforts to retain wide officer discretion to use force may ultimately expose officers and agencies to liability instead of shielding them from it. It is time for advocacy groups seeking policing improvements to train their sights on Lexipol. Unless and until Lexipol changes its approach, the company should be viewed as a barrier to reform. * Professors of Law, UCLA School of Law. For thoughtful comments on prior drafts, we than