Standing to Punish, Standing to Deport

There is a longstanding debate in the philosophy of criminal law about the ethics of punishing the disadvantaged (Shelby 2016; Duff 2001; Tadros 2009; Yost 2022). A prominent view holds that a state lacks standing to punish when it has contributed to the structural conditions that give rise to criminal offending, or when it acts hypocritically by condemning conduct it has itself engaged in (Duff 2001; Tadros 2009). This talk examines the implications of that debate for the ethics of immigration enforcement. I ask whether, and under what conditions, a state lacks standing to enforce immigration law through practices such as detention and deportation—especially when it has played a role in producing the social, economic, or political conditions that drive migration or generate migrants’ legal vulnerability. I argue that the concept of moral standing developed in criminal law offers a fruitful way of capturing the intuition that it is wrongful for a state to detain or deport migrants when it bears responsibility for the harms or background conditions that precipitate their migration. This concern arises not only in cases of contemporary geopolitical intervention or economic extraction, but also in patterns of migration shaped by colonial and post-colonial relationships between states. On this view, a state’s authority to detain and deport is not absolute, but subject to normative constraints analogous to those that limit its authority to punish in the criminal law. In developing this argument, I build on discussions of crimmigration (Mendoza 2020) and on recent debates in the ethics of immigration enforcement (Mendoza 2015; Sager 2016; Lister 2020). More broadly, the analysis raises questions about the relationship between criminal and immigration law and about the moral limits of state coercion.