Banished and Overcriminalized Critical Race Perspectives of Illegal Entry and Drug Courier Prosecutions

Abstract

Scholarship on illegal entry and drug courier prosecutions fails to apply Critical Race Theory (CRT).  Disregard of how these pro-secutions contribute to racial stratification in and outside American prisons or how drug couriers experience intersectionality ignores sociological and cultural processes.  Criminal justice professionals have racialized the system through implicit biases, but a CRT approach to criminal defense can ameliorate this problem.  As such, scholars cannot refuse to take notice of CRT. 

Jennifer Chacón and Ingrid Eagley have written on illegal entry, describing the convergence of immigration and criminal law.  Mona Lynch and Caleb Mason have conducted studies on drug couriers, focusing on the selection of cases for prosecution and the market for couriers along the United States-Mexico border.  These scholars failed to consider how post-colonialism or historical oppression (both CRT tools) influence legal processes.   Their analyses also lack practical implications for defense lawyers.

This Article uses CRT to unpack the historical and contemporary reality of these prosecutions.  With this new framework, it describes strategies for the defense lawyer with the aim of mitigating implicit bias, the main source of racial disparity in today’s federal criminal courts.  In so doing, it is the first CRT investigation of two types of border crimes.  It is also the first to describe a race-conscious criminal defense practice within the context of CRT.