Immigration, Criminalization, and Disobedience

This symposium essay explores two contending visions of immigration justice: one focused on expanding procedural rights for immigrants, and a second associated with a movement of immigrant youth who have come out en masse as “undocumented and unafraid,” issuing a fundamental challenge to immigration restrictionism. As immigration enforcement in the United States increasingly relies on criminal prosecution and detention, advocates for reform have increasingly turned to constitutional criminal procedure, seeking greater procedural protections for immigrants. But this essay argues that this focus on enhanced procedural protections is woefully incomplete as a vision of immigration justice. Although a right to counsel, for example, may provide comfort and aid to certain vulnerable individuals, such procedural protections are unlikely to change the quasi-criminal character of immigration enforcement or to address the plight of the millions of people without a path to lawful status. Just as U.S. constitutional criminal procedure failed to ameliorate the harshness of substantive criminal law, more robust immigration procedural protections would likely fail to reorient immigration enforcement in a more humane direction. By contrast, a growing movement of immigrant *557 youth offers a more expansive conception of immigration reform. As these immigrant youth lay claim to a “right to remain,” infiltrate immigration detention centers, and crash the border, they have reshaped our political and legal discourse, gesturing towards an alternative vision of immigration justice

Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives

Confronting criminal law’s violence calls for an openness to unfinished alternatives — a willingness to engage in partial, in process, incomplete reformist efforts that seek to displace conventional criminal law administration as a primary mechanism for social order maintenance. But despite all indications that the status quo in U.S. criminal law administration is profoundly dysfunctional — an institutional manifestation of the deepest pathologies in our society — contemporary criminal law reform efforts and scholarship focus almost exclusively on relatively limited modifications to the status quo. These modifications may well render criminal law administration more humane, but fail to substitute alternative institutions or approaches to realize social order maintenance goals. In particular, these reformist efforts continue to rely on conventional criminal regulatory approaches to a wide array of social concerns, with all of their associated violence: on criminalization, policing, arrest, prosecution, incarceration, probation, and parole. Thus, even as these reformist approaches may offer substantial benefits, they remain wed to institutions that perpetrate criminal law’s violence and to limited temporal and imaginative horizons. By contrast, this essay explores a series of criminal law reform alternatives that offer more fundamental substitutes for criminal law administration. More specifically, this essay focuses on the possibilities of alternatives to criminal case processing that substitute for the order-maintaining functions currently attempted through criminal law enforcement. These alternatives hold the potential to draw into service separate institutions and mechanisms from those typically associated with criminal law administration. Further, these alternatives enlist on more equal footing and invite feedback and input from persons subject to criminal law enforcement. Importantly, this latter subset of reform alternatives is decidedly unfinished, partial, in process. I will argue that this unfinished quality ought not to be denied as an embarrassment or flaw, but instead should be embraced as a source of critical strength and possibility. In this dimension, this essay is a preliminary call for more attention on the part of legal scholars and criminal law reform advocates to unfinished partial substitutes for the order-maintaining work performed by criminal law administration — a call to attend further to as yet incomplete reformist alternatives that may portend less violent and more self-determined ways of achieving some measure of social order and collective peace. I begin to develop this argument by drawing, in particular, on the work of the Norwegian social theorist and prison abolitionist Thomas Mathiesen

Abolition and Environmental Justice

During the coronavirus pandemic, movements for penal abolition and racial justice achieved dramatic growth and increased visibility. While much public discussion of abolition has centered on the call to divest from criminal law enforcement, contemporary abolitionists also understand public safety in terms of building new life-sustaining institutions and collective structures that improve human well-being, linking penal divestment to environmental justice. In urging a reimagination of public safety, abolitionists envision much more than decriminalization or a reallocation of police functions to social service agencies or other alternatives to imprisonment and policing. Instead, for abolitionists, meaningful public safety requires, among other things, a just transition away from an extractive fossil fuel driven economy characterized by vast racialized inequality and held in place by penal bureaucracy, and towards new regenerative economic, social, and ecological systems. This Article explores the connections between abolition and environmental justice, examining social movement organizing, litigation, and proposed legislation. These abolitionist environmental justice projects aim both to confront the harms associated with criminal law enforcement and ecological catastrophe and to build a more sustainable and just future. These efforts represent a necessary turn towards addressing multiple interlocking crises together rather than treating the harms involved in criminal law enforcement, climate change, and racial capitalism as separate and distinct. This Article attends carefully to and attempts to think with abolitionist and environmental justice movement participants, engaging the ideas and strategies generated by these movements as sources of insight into law’s injustice and possible abolitionist futures

Exporting U.S. Criminal Justice

In the years leading up to and following the end of the Cold War, the U.S. government embarked on a new legal transplant project, carried out through the foreign promotion of U.S. criminal justice techniques, criminal procedures, and transnational crime priorities. U.S. prosecutors and police-posted across Africa, Asia, Eastern Europe, Latin America, and the Middle East-have sought to advance democracy and development, as well as to control crime, by reforming foreign criminal justice institutions with reference to U.S. models. In the view of some, this amounts to legal imperialism: an open and declared imposition on the part of foreign powers. Others maintain that the core of democracy is the Rule of Law, and the [U.S. Justice Department\u27s] Criminal Division is its greatest ambassador. Alternately celebrated and condemned, U.S. efforts are associated with a revolution in Latin American criminal procedure, the introduction of plea bargaining in Russia, a new rights-protective criminal procedure code in Indonesia, prison construction in Mexico, and new transnational crime statutes in states across the globe. This Article explores the complex implications of this emerging field of transnational criminal law

Regulating Sexual Harm: Strangers, Intimates, and Social Institutional Reform

The criminal regulation of sexual harm in the United States is afflicted by deep pathology. Although sexual harm appears before the law in a variety of forms—from violent rape, to indecent exposure, to the sexual touching by an older child of a younger child—the prevailing U.S. criminal regulatory framework responds to this wide range of conduct with remarkable uniformity. All persons so convicted are labeled “sex offenders,” and most are subjected to registration, community notification, and residential restrictions, among other sanctions. These measures purport to prevent the perpetration of further criminal sexual harm by publicizing the identities and restricting the residential opportunities of persons presumed to be strangers to their victims. But even as these measures render many subject to them homeless and unemployable, sexual abuse remains pervasive and significantly underreported in our schools, prisons, military, and between intimates in families. Thus, at once, the U.S. criminal regulatory regime constructs a peculiarly overbroad category of feared persons, compels a misguided approach to this population, and neglects the most prevalent forms of vulnerability to sexual predation and assault. This essay argues that an alternative social institutional reform framework could address pervasive forms of sexual harm more meaningfully and with fewer problems than attend the prevailing criminal regulatory framework. This alternative framework would depart in large measure from purportedly preventive post-conviction criminal regulation, focusing instead on institutional, structural, and social dynamics that enable sexual violence and abuse

Unfavourable expression of pharmacologic markers in mucinous colorectal cancer

Patients with mucinous colorectal cancer generally have worse prognoses than those with the nonmucinous variety. The reason for this disparity is unclear, but may result from a differential response to adjuvant chemotherapy. We examined known molecular markers for response to common chemotherapy in these two histological subtypes. In all, 21 patients with mucinous and 30 with nonmucinous Dukes C colorectal cancer were reviewed for demographic data and outcome. Total RNA from the tumours and adjacent normal mucosa was isolated and reverse transcribed. Quantitative expression levels of drug pathway genes were determined using TaqMan RT–PCR (5-fluorouracil (5-FU): TYMS, DPYD, ECGF1; oxaliplatin: GSTP1 (glutathione S-transferase pi), ERCC1 and 2; irinotecan: ABCB1, ABCG2, CYP3A4, UGT1A1, CES2, TOP1). Mucinous tumours significantly overexpressed both TYMS and GSTP1 relative to nonmucinous tumours and patient-matched normal mucosa. No significant differences in expression of the remaining markers were found. Mean follow-up was 20 months; 17 patients had recurrent disease. Among patients receiving 5-FU, those with mucinous tumours experienced shorter disease-free survival (DFS) than those with nonmucinous tumours (median DFS 13.8 vs 46.5 months, P=0.053). Mucinous colorectal cancer overexpresses markers of resistance to 5-FU and oxaliplatin. Likewise, DFS may be decreased in patients with mucinous tumours who receive 5-FU. The presence of mucin should be carefully evaluated in developmental trials of new agents for treating colorectal cancer

Cancer Pharmacogenomics and Pharmacoepidemiology: Setting a Research Agenda to Accelerate Translation

Recent advances in genomic research have demonstrated a substantial role for genomic factors in predicting response to cancer therapies. Researchers in the fields of cancer pharmacogenomics and pharmacoepidemiology seek to understand why individuals respond differently to drug therapy, in terms of both adverse effects and treatment efficacy. To identify research priorities as well as the resources and infrastructure needed to advance these fields, the National Cancer Institute (NCI) sponsored a workshop titled “Cancer Pharmacogenomics: Setting a Research Agenda to Accelerate Translation” on July 21, 2009, in Bethesda, MD. In this commentary, we summarize and discuss five science-based recommendations and four infrastructure-based recommendations that were identified as a result of discussions held during this workshop. Key recommendations include 1) supporting the routine collection of germline and tumor biospecimens in NCI-sponsored clinical trials and in some observational and population-based studies; 2) incorporating pharmacogenomic markers into clinical trials; 3) addressing the ethical, legal, social, and biospecimen- and data-sharing implications of pharmacogenomic and pharmacoepidemiologic research; and 4) establishing partnerships across NCI, with other federal agencies, and with industry. Together, these recommendations will facilitate the discovery and validation of clinical, sociodemographic, lifestyle, and genomic markers related to cancer treatment response and adverse events, and they will improve both the speed and efficiency by which new pharmacogenomic and pharmacoepidemiologic information is translated into clinical practice

Could Specialized Criminal Courts Help Contain the Crises of Overcriminalization and Overincarceration?

In contrast to the existing scholarly commentary on specialized criminal courts, which is largely trapped in the mode of advocacy—alternately celebratory or disparaging, and insufficiently attentive to the remarkable variation between different specialized criminal courts—this article introduces an analytic framework and critical theoretical account of four contending criminal law reformist models at work in specialized criminal courts. These four criminal law reformist models include: (1) a therapeutic jurisprudence model, (2) a judicial monitoring model, (3) an order maintenance model, and (4) a decarceration model. Based on a multi-method approach consisting of site visits, and an analysis of archived interviews, the courts’ promotional materials, ongoing empirical monitoring of the courts, and the legal academic and sociological literature on the courts, the author demonstrates how specialized criminal courts, adopting features associated with what she calls a decarceration model, may enable significant transformative change in U.S. criminal law. But if configured primarily in accord with the first three models above, these courts threaten to produce a set of undesirable outcomes—expanding criminal surveillance and possibly even increasing incarceration—despite opposite intended effects

Exporting U.S. Criminal Justice

This article explores how and why, in the Cold War’s wake, the U.S. government began to export U.S.-style criminal law and procedure models to developing and politically transitioning states. U.S. criminal law and development consultants now work in countries across the globe. This article reveals how U.S. initiatives have shaped state and non-state actors’ responses to a range of global challenges, even as this approach suffers from a deep democratic deficit. Further, this article argues that U.S. programs perpetuate U.S.-style legal institutional idolatry (which is often tied to systemic dysfunction both in the United States and abroad), and in so doing impoverish our collective capacity to imagine more effective and humane alternatives. For example, while U.S. consultants have promoted adversarial criminal procedure reforms (jury trials, transformed roles for judges and lawyers), along with the criminalization of intellectual property infringement in El Salvador, Guatemala, and Honduras, interpersonal violence has become ever more prevalent and the transformed procedures have failed to operate as intended, requiring, as in the U.S. context, extensive reliance on plea-bargaining and exacerbating system backlogs. The article concludes by considering what criminal rule of law alternatives might entail, including ongoing alternative development initiatives spearheaded by the United Nations, which subsidize alternative livelihoods for persons engaged in criminalized conduct until the licit alternatives become self-sustaining