Eleonora Di Molfetta

The presence of immigrants with a vulnerable legal status in criminal courts has been brought to public attention once again. In May 2017, an Eritrean asylum seeker has been sentenced to twelve years of custodial sentence for attempt to murder and violence of a seventeen-year-old girl from Kampen, a city located in the northwest of the Netherlands. Once again, as happened before in a criminal case involving two asylum seekers sentenced for pickpocketing in Groningen, the court delivered a punishment that overcame the public prosecutor’ request, which in this case was eleven years. The reaction from the community did no wait too long. The mayor of Kampen, Bort Koelewijn, pleaded for an ‘avondklok’, a curfew for the residents in the asylum seekers centre of Dronten, which is located 15km from Kampen.

Criminal cases involving immigrants with a vulnerable legal status are able to capture political, media and social attention due to the peculiar administrative status of the offender. Indeed, in these trials, the offender does not have a legal residence permit to reside in the Netherlands and this lack is able to influence public discourses and the way in which the general public construe and interpret the presence of asylum seekers in the country. As Sayad points out analysing the symbolic construction of immigrants on trial for the commission of a criminal offence ‘because the immigrant is already in the wrong simply because he is present in a land of immigration, all his other sins are reduplicated and aggravated by the original sin of immigration’ (2004:283).

This problematic symbolic construction does not only hold true for asylum seekers whom asylum application is pending, but also for other categories of immigrants as well. These categories include, but are not limited to, immigrants without a legal residence permit, immigrants who lost their residence permit due to the commission of a criminal offence and immigrants whom residence permit application is pending. What all these categories of immigrants have in common is the precariousness of their residence permit: once sentenced for a criminal offence, they will lose or will be unable to obtain a residence permit. The way in which the criminal justice system and the administrative apparatus intersect in defining the position of immigrants with a vulnerable legal status in mainstream society fall under the label ‘crimmigration’. The term has been used to denote the intersection between crime control and migration control, characteristic of this hybrid criminal-administrative legal apparatus.

Did the vulnerable legal position of the offender influence the outcome of his criminal cases? The most honest answer is that we do not know. The judge who sentenced the Eritrean asylum seeker stated that the origin of the offender did not play any role in meting out punishment. Yet, this judgment represents a ‘firm punishment’, as Prof. Peter Tak pointed out. The problem in understanding whether the vulnerable legal status of the offender played a role in the sanction imposed is that sentencing outcomes are often the product of multiple decision-making made by several courtroom actors. An outcomes-oriented approach, which focusses on the ‘products’ of sentencing decision-making processes, results to be inappropriate, or at its best incomplete, to account for all legal and extra-legal sentencing factors able to shape a court judgment. Rather than look at the outcome of a particular criminal case to understand whether it was ‘too much’ punishment and whether ‘certain’ factors played a role, the current scholarship should analyse the processes behind sentencing outcomes, in other words, how particular outcomes were produced and construed within the courtroom.

Did the vulnerable legal position of the offender influence the outcome of his criminal cases?

Until now, mainstream research have relied upon an outcomes-oriented approach to unravel the impact of citizenship status on sentencing practices. One exception worth mentioning is the promising study conducted by Ingrid V. Eagly. Her empirical work has been able to show how migration control permeates local criminal practices and how criminal justice actors interact and respond to immigration-related concerns. A process-oriented approach to sentencing decision-making can greatly contribute to our knowledge on the kind of justice immigrants with a vulnerable legal status experience within the criminal justice system. This research approach is not only able to depict and account for internal courtroom dynamics, but it is also able to shed light on legal and extra-legal factors that shape and constrain the way in which criminal justice actors exercise their discretionary powers. This is the approach I have chosen to adopt in researching sentencing practices for immigrants with a vulnerable legal status, approach that translates into a courtroom ethnography. By looking at sentencing decision-making process as a collective and dynamic enterprise between different criminal justice actors, we could gain a greater understanding of the factors at stake in meting out punishment for immigrants with a vulnerable legal status, in addition to the consequences of certain sentencing practices for our criminal justice system and for this group of vulnerable offenders.

Current scholarship should analyse the processes behind sentencing outcomes