Historical, structural, statistical, and constitutional context is elemental to a proper understanding of the true purpose and effect of a criminal statute and its execution. Illegal Reentry, 8 U.S.C. § 1326, may seem like a basic rule to deter potential criminals from entering the United States. A prosecutor's argument that a defendant must be detained prior to trial due to the possibility of Immigration and Customs Enforcement removing the defendant may seem like a logical argument. However, once these actions are viewed in the succession of events that constitutes the history of undocumented Latino immigrants in the United States, are placed within the structure of a model of social control that has largely dictated that history, are reviewed for their statistical impact on a specific group, and have their reasoning and functions exposed as out of accord with the principles set forth in the Constitution, both this statute and frequently utilized argument are seen for what they are: two harsh tools in a large, continuing system of social control of undocumented Latino immigrants.
Patrick Kirby Madden,
Illegal Reentry and Denial of Bail to Undocumented Defendants: Unjust Tools for Social Control of Undocumented Latino Immigrants,
11 Hastings Race & Poverty L.J. 339
Available at: https://repository.uchastings.edu/hastings_race_poverty_law_journal/vol11/iss2/4