One of the “arguments” for restrictive and even harsh immigration policies in the United States seems to go (more or less) like this:

1. people who enter the country illegally are breaking the law;

2. since they’re breaking the law, they’re criminals;

3. since they’re criminals, they should be deported as soon as possible (and treated harshly).

Such thinking—spelled out to a greater or lesser degree—is suggested by publications in right-wing circles and endorsed in anti-immigrant activism, like in the photo above.

The argument, of course, is applied opportunistically. I’ve never known of a white person who entered the country without proper legal documentation, like Melania Trump, to be labeled a “criminal” for doing so. But the problem of unequal application is not the only problem this argument has.

The more fundamental problem is the argument’s sloppy assumption about the meaning of the noun “criminal” that underlies step 2.

Sloppy Assumption: the noun “criminal” can be predicated truly of any person who knowingly violates a law.

It’s easy to see why this assumption is wrong. If it were true, then anyone who drives over the speed limit is a criminal. After all, they knowingly violate a law. Alternately, anyone who doesn’t pay taxes on the $25 they get for cat sitting the neighbor’s cat would be a criminal. Or someone who knowingly keeps a book from the public library an extra day would also be counted a criminal. Basically, everyone who’s not an Eagle Scout (and quite a few people who are) would count as “criminals” under the Sloppy Assumption, which would result in the word’s losing any significance it had.

The law, of course, recognizes a distinction between minor infractions (which aren’t treated as “criminal”) and misdemeanors and felonies (which are). But the question of interest here is not just which acts are “criminal acts” in a technical legal sense, but rather which persons can reasonably referred to with the noun “criminal.” And we wouldn’t call every single person who does a criminal act (in the technical sense) a “criminal,” since many misdemeanors, like possessing a trivial amount of marijuana, don’t license branding someone a “criminal” (more on this below).

So a better assumption would include at least one more condition on the meaning of “criminal.” The incomplete form of that assumption would be this:

Better Assumption: the noun “criminal” can be predicated truly of any person who knowingly violates a law, where that law satisfies the condition [INSERT ADDITIONAL CONDITION HERE].

…where the filled-in portion [currently in brackets] would specify the difference between laws that one can violate without becoming a “criminal” (like speeding) and laws that one becomes a “criminal” in violating (like robbing a bank).

What then should the additional condition be?

In attempting to answer this question, we could go one of three routes.

First, we could attempt to analyze the ordinary, everyday usage of the noun “criminal” (in non-fraught contexts) and try to reconstruct what condition is implied. Call this the Lexicographer’s Route.

Second, we could analyze the legal code to see what laws have the term “criminal” applied to their violations and ask what all (or most of) those laws have in common. Call this the Legal Scholar’s Route.

Third, we could ask what distinction is most worth making by means of the noun “criminal.” Let’s call this the Philosopher’s Route.

These routes, as I’ve suggested, will come apart in the search for a general definition of “criminal.” Driving Under the Influence (DUI), for example, is a criminal offense in the State of Georgia, where I am writing, as well as in other States. But in contrast, I doubt many people in casual speech would call my kind-hearted yoga teacher a “criminal” on account of his recent DUI (in which no one was hurt). So the first and second routes—the Lexicographer’s vs. the Legal Scholar’s—are likely to come apart. In other words, as a legal term of art, “criminal” is applied differently from how it’s applied in casual speech (and I understand that “criminal” as a noun is rare in legal contexts in any case).

My own inclination is toward the third route—the Philosopher’s Route—for the following reasons. The first route, on my view, is unlikely to yield anything clear: people tend to brand as “criminal” anyone who commits legal violations that they especially don’t like, so the Lexicographer’s Route is unlikely to find a stable principle. And the second route, while informative and interesting about a pattern that may exist in the current legal code, is unlikely to answer the normative question of why the legal extension of the word “criminal” should be as it is.

The Philosopher’s Route, if executed well, promises both more clarity and motivation. The philosophical approach I would favor involves asking two questions:

1. What are the downstream consequences of having the word “criminal” apply to some person?

2. For what sort of act are those downstream consequences appropriate (given general social interests like security, economic well-being, etc.)?

Such questions could be investigated at arbitrary lengths, so I can only make schematic suggestions here. But let me indicate the direction in which I think this inquiry is likely to go.

People who are regarded as “criminals” are typically treated with a great deal of caution and are often avoided—even when their crimes aren’t known to the people reacting in this fashion. Someone categorized as “a criminal” is likely to experience social ostracism, unlike people who break laws not associated with the word “criminal.”

So the second question can be re-written as: for what sort of act is a punitive attitude and some degree of general social ostracism appropriate?

Again, there will be much to say here. But the obvious suggestions are violence and other unlawful activities that eventuate in physical harm to other humans (like when executives at a corporation make a “business” decision to release dangerous levels of pollution in a waterway). This is because a person’s proneness toward physically hurting others constitutes a fair reason to avoid—or in worse cases—ostracize that person: people who disregard the physical safety of others may need to be avoided.

There may be other conditions on acts that would merit the treatments associated with the noun “criminal,” but about these I’m less sure. For example, stealing is almost universally earns the “criminal” label, so we may wish to include unlawful taking of property under our additional condition. The rationale would be that the propensity for taking another’s property constitutes a reason to withdraw from them. Alternately, the rationale could go to the fact that stealing is often paired with the threat of physical harm.

The direction in which this line of reasoning is headed is clear. A criminal would be someone who (i) breaks a law and (ii) physically harms (or threatens physical harm to) another human or misappropriates others’ property. It’s hard to see that generally applying the treatments associated with the word “criminal” to people who commit other, non-dangerous unlawful acts will be beneficial to any given person or to society as a whole.

How does this all apply to unlawful entrants to the country? The upshot is that merely crossing the border unlawfully should not result in someone’s receiving the label “criminal,” since that act neither harms physically nor misappropriates the property of others. That’s not to say that it’s not an illegal act—by definition it is—but rather that nothing about it by itself amounts to criminality, properly conceived, as a property of a person.

Thanks to Bill Aron, Marcos Gonzalez, and Ari Weinstein for their lawyerly input on this blog.