In the past year, California Governor Jerry Brown and New York Governor Andrew Cuomo made generous use of their power to pardon state crimes committed by noncitizens, reinvigorating a much-neglected means by which long-term residents may stave off conviction-based deportation.  The personal stories of the individuals who benefited from the Brown and Cuomo pardons no doubt illustrate how individuals and families can be spared from unjustified hardship through the power to pardon.  But were the governors justified in asserting a role for state interests in tempering federal immigration enforcement policies they evidently regarded as too harsh?  In this post, I will briefly explain the legal and theoretical framework that supports a role for state pardons in the immigration context, and then argue for a more generous use of the pardon power in principled and transparent ways.

As an historical matter, the pardon power is rooted in a state’s inherent authority to govern its residents through punishment and forgiveness. Indeed, the use of pardon to promote social cohesion by encouraging rehabilitation dates to colonial times. The Framers considered the pardon power to be a “fail-safe” for justice, as well as a political tool, and over the course of the Nation’s history pardons have long been recognized as integral to maintaining the legitimacy of the criminal justice system through error correction and individuation.

Pardon has also been the mechanism by which Congress has recognized a role for state interests in the immigration context.  Since 1917, when the first statute providing for deportation on the basis of criminal history was enacted, federal law explicitly recognized the power of full and unconditional state pardons to avoid that federal collateral sanction. (As I have shown elsewhere, there is evidence that even before Congress made the role of pardon explicit in the 1917 Act, federal authorities recognized the nullifying effect of state pardons in immigration matters.)  For much of the twentieth century, immigration law allowed state pardons to defeat deportation based on any of the specified crime categories, just as it allowed state courts to decide whether a specific criminal defendant should be deported through a “judicial recommendations against deportation” (JRAD).

In more recent decades, Congress has limited state power to control immigration outcomes, but it has not nullified it.  To be sure, in 1990 state judges were deprived of a formal role in the immigration equation by repeal of the JRAD authority.  Additionally a restructured immigration code specified a role for pardon in connection with just four deportation categories, and was silent about the effect of pardon for other deportation categories.  While principles of federalism should caution against interpreting the statute in ways that undermine state police power without a clear statement of Congressional intent, courts that have considered the issue have determined that pardons will have preclusive effect only for the specifically enumerated categories.

In any event, there is no doubt that Congress intended full and unconditional state pardons to remove the immigration consequences that would normally flow from state convictions falling in the following deportation categories: crimes involving moral turpitude, multiple criminal convictions, aggravated felonies, and high-speed flight from an immigration checkpoint. Notably, these broad provisions incorporate many sub-categories that include relatively minor crimes that are neither aggravated nor felonies, although most controlled substance offenses are carved out of the ambit of crimes that would benefit from state pardons. (It’s worth observing that pardons may still help lawful permanent residents with drug convictions avoid removal through adjudicatory discretionary relief mechanisms like cancellation of removal; many of the noncitizens pardoned by Governor Cuomo and at least one person pardoned by Governor Brown had been convicted of drug crimes.)

Rather than undermining immigration law, then, pardons that fall within the specified categories further the statutory design, which explicitly allocates responsibility for deciding a noncitizen’s continued right to membership to the same sovereign that rendered the predicate conviction in the first place.

This delegation makes sense because the federal immigration system rarely makes its own determination about whether a particular noncitizen is actually dangerous or is likely to transgress societal norms. Instead, the enforcement scheme directly relies on state and local law enforcement systems to determine which noncitizens should be priorities for removal, using the proxies of conviction and sentencing. Through this choice, which represents huge resource-savings benefits to the federal government, Congress has in essence incorporated state laws of general applicability into the federal regulatory scheme.

Especially today, when federal enforcement policy has taken a sharp turn towards a less nuanced and more draconian direction, governors should take seriously the responsibility given to them by the immigration code to be the ultimate arbiters of whether a state conviction should result in deportation, as Governors Brown and Cuomo evidently have. The widespread use of the pardon power in principled and transparent ways would spare many individuals and families from unjustified hardship, recognize the time-honored role of state law in immigration determinations, and promote competing norms of justice and empathy in the national dialogue about appropriate immigration enforcement policy.

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Jason A. Cade is an Associate Professor of Law at the University of Georgia School of Law. His scholarship explores the role of nonfederal actors and institutions in the modern immigration system, judicial review of deportation procedures, and intersections between immigration enforcement and criminal law.