Abstract

Excerpted From: Ingrid Eagly, Second Chances in Criminal and Immigration Law, 98 Indiana Law Journal 977 (Spring, 2023) (145 Footnotes) (Full Document)

My talk today focuses on two areas of law--the criminal law and immigration law--that have a lot in common. Both have a disproportionate impact on the poor, immigrants, and people of color. Changes in both sets of laws at the federal and state levels over the past decades have ratcheted up the punitiveness of both systems. These two areas have also become increasingly intertwined in important ways. The criminal legal system--through its mechanisms of arrest, conviction, and incarceration--now serves as the primary pipeline into the immigration enforcement system. In the immigration system, individuals face new punishment. For example, they can be mandatorily detained without access to a bond hearing. And, despite already serving their time in the criminal system, they can suffer deportation from the United States--permanent separation from what the U.S. Supreme Court has called “all that makes life worth living.” Importantly, this merger between immigration and criminal law--as immigration scholar Kevin Johnson has cogently shown--means that “[t]he racially disparate consequences of the modern criminal justice system” carry over into the immigration system.

On a more personal note, as my lecture will make clear, these are also two areas of law that I have engaged in throughout my career, both as a scholar and as a public interest lawyer. Drawing on my research and lessons I have learned from my clients over the years, today I want to do three things. First, I begin by focusing on the criminal legal system. As I will explain, there is a growing consensus--with bipartisan support in Congress--that the criminal laws of the past require reconsideration. These incremental reforms are often characterized as “second chance” reforms that acknowledge racial bias, correct for past injustices, and reward personal growth. Although these changes in law are only just beginning to address the changes needed to reimagine our criminal legal system, they have resulted in meaningful change for the many individuals who have been released from prison as a result of these efforts. Second, I advance that immigration law should follow the example of the criminal law and incorporate similar opportunities for second chances. Third, I conclude by bringing us back to the reason why we are all gathered here today--to celebrate the legacy of the esteemed Professor Ralph Follen Fuchs.

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In my comments thus far, I have set forth a forward-thinking set of reforms that would be an initial step toward bringing the time-honored value of second chances into the immigration system. I want to conclude with a few brief remarks that connect us back to Professor Ralph Fuchs, whose meaningful legacy has brought us all together today. Professor Fuchs, who has been described as Indiana University's “Jewel in the Crown,” is celebrated as someone who believed in “freedom, justice and human dignity.” One thing that I find particularly remarkable is Professor Fuchs's deep commitment to integrating public service into his career as a lawyer and professor of law. For instance, Professor Fuchs was a pioneering and prolific scholar in the emerging field of administrative law. But, he was also a lifelong member of the American Civil Liberties Union (ACLU) and helped to found and lead Indiana's ACLU chapter.

Professor Fuchs was also ahead of his time in thinking about how best to develop law school pedagogy to ensure that more law students graduated with a commitment to public service. An award-winning instructor, Professor Fuchs is remembered as meticulous and demanding, while at the same time showing “personal care for his students.” In his scholarship, Professor Fuchs recognized that law schools should devote more attention to the study of social problems and the actual operation of legal institutions. He firmly believed that the University had a duty to equip law students to be critical of the law--and to have the tools to change it.

In the spirit of this Fuchs lecture, my final thoughts are directed to the law students in our audience. Some of you may pursue careers in immigration or criminal law, but many will not. In fact, you are likely still figuring out what your future focus in the law will be. As you move forward in your unique paths, I encourage all of you--no matter what your ultimate specialty--to take on the cases of the vulnerable, the poor, and the people for whom access to a lawyer can be life changing. Initiatives like President Obama's Clemency Project 2014 and Governor Brown's ambitious pardon program did not happen on their own. These initiatives relied on the hard work of applicants, their families, and dedicated community advocates. But they were also supported by a veritable army of volunteer legal workers.

As more changes come down the road, many more such volunteer opportunities will come with them. I encourage you not to hesitate--get involved. And encourage others to do the same. Through this work, you will make a difference. But it is also through this work--by stepping inside our prisons, appearing in our immigration courts, and working alongside others engaged in this struggle--that that you will see up close the injustice that our legal system too often inflicts and become part of the important conversation on how it must change.

Professor of Law and Faculty Director, Criminal Justice Program, UCLA School of Law.