Title

Response - A New Hope: Bringing Justice Back into Removal Proceedings

Abstract

In his article, Return of the JRAD, Professor Jason Cade makes a strong and viable case that the Department of Homeland Security (DHS) can and should take into account nonstatutory Judicial Recommendations Against Deportation (JRADs) and other criminal justice signals of diminished criminal culpability when deciding whether or not to charge a noncitizen with deportability. Professor Cade’s proposal is a good one. The overall effects of his proposal will be modest. It can neither eliminate racial disparities in the criminal justice system and deportations nor end capricious distinctions between similarly situated criminal defendants in removal proceedings. On the other hand, it has no notable downsides and some significant potential upsides. Part I explains why exercising discretion along the lines that Cade proposes is firmly within DHS’s discretion and why such modest and rational exercises of discretion are unlikely to spark political backlash. Part II elaborates upon the potential benefits of Cade’s proposal. First, by encouraging criminal sentencing judges to issue nonstatutory JRADs, the Cade proposal promises to provide DHS with useful information otherwise unavailable at the charging stage, thus increasing charging fairness. At the same time, his proposal would make a positive change in the way that at least some criminal sentencing judges think about immigration consequences in criminal sentencing. Ultimately, it might even change the way that we talk, think, and write about the nexus of immigration and criminal law—better exposing the common failings and the interconnections of these systems to scholars and practitioners other than those who routinely work at their intersection.