At Sentencing Law & Policy, Doug Berman links to a paper by Yale Law School’s Simeon E. Baldwin Professor Emeritus Peter Schuck, who has taught pretty much everything but criminal law (largely a superfluous course at Yale).  The paper is entitled Immigrant Criminals in Overcrowded Prisons: Rethinking an Anachronistic Policy, which gives you a pretty good idea where it comes out on the subject.

If you still have any doubt what this paper is about, the summary should clear that up:

Under an Immigration and Nationality Act provision dating to 1917, deportable immigrant criminals must serve their entire sentences in the U.S. before being removed from the country. (Exceptions, enacted in 1996, are seldom used). At the same time, federal and state prisons are dangerously overcrowded, with the Supreme Court soon to rule on the constitutionality of overcrowded conditions in the California system. The paper shows that the most common proposals for reducing overcrowding are either politically difficult (e.g., shorter sentences) or numerically insignificant (e.g., decriminalizing drug possession for use). The paper proposes instead, or in addition, to facilitate the earlier removal of deportable criminals and analyzes the legal, policy, and diplomatic changes that would be necessary to implement this approach.

At 129 pages, it’s quite long. If anybody wants to breeze through it and let me know if there are any fascinating tidbits, that would be great. I would rather stick a needle in my eye than read it in its entirety. The title and summary are enough for me.

The reasoning behind our existing police of requiring “deportable immigrant criminals” to serve their sentences before deportation is clear: If not, then there is insufficient incentive for immigrants to abide our law. If the worst that can happen is a person gets sent back to where he came from, the downside of committing a crime is tiny compared with the upside of getting away with it.

Of course, when Schuck speaks of “deportable immigrant criminals,” there are really two very different groups involved. One group are what we lovingly describe as “illegals,” the ones who didn’t get the government’s blessing before coming over.  The other are immigrants who are here lawfully, perhaps for decades and, maybe, as babies such that they never knew their native land. 

While the undocumented flavor of immigrants may get an additional petty charge, we largely treat both groups the same after conviction. Commit a crime and you’re out of here. 

Schuck’s point is that this policy, making immigrants serve the same absurdly lengthy sentences as citizens and then shipping them off, is expensive and consumes cell space that could go to 110% Americans. It seems it’s not enough to complain that they take our jobs (because so many Americans want employment as migrant farm laborers), but now we’re complaining they take our prison cells.

Out of sight, out of mind, has some virtue.  Once we ship them back to wherever they came from, the south of France perhaps, they’re no longer our problem, right?  So what if they’re criminals: let them be France’s criminals. Or maybe Guatemala’s. Whatever. They are only our problem if we make them our problem.  Schuck contends this is an anachronistic police choice, one that arose when we had tons of empty prison space and only had to feed them gruel. Now that they get three squares a day, they cost too much and the policy is no longer worth the price.

Painful as it is for me to say, Schuck is right.  Not that immigrants who commit crimes should get a walk on punishment, but that imprisoning them as if they weren’t going to be deported upon release never made much sense. 

The only legitimate sentencing factor that applies to a person who will be deported upon completion of a sentence is general deterrence, the message to others that if they commit a crime, they will be punished.  And of the sentencing factors, it’s always been the weakest. It works much better in theory than it ever did in practice, as people are clueless as to what punishment applies to a crime, don’t believe it will ever happen to them and, frankly, just don’t think about it. The theory relies on rational actors, and few criminals fall into the category of rational actors.

This isn’t to say that immigrants who will be deported anyway shouldn’t be free of any punishment, but that deportation should be taken into consideration when considering the parsimony clause, 18 USC §3553.  The factors required to be considered by a court in imposing sentence makes little sense when applied to someone who will be shipped out on the next plane after release. Juxtaposed with the cost of imprisonment, they make even less sense.

One solution is greatly expanded use of early deportation by agreement when there is nothing to be gained by imprisonment.  Where more serious crimes are involved that demand some punishment for general deterrence purposes (whether real or imagined), the better solution is that a fraction of the sentence that would be imposed if the convict was to be released back into American society, where we (again theoretically) hope for integration as a law-abiding, productive citizen. 

If that’s not the goal, and how much do we really want to pay for someone to be a law-abiding, productive member of French society, then give them a spanking and send them home. Think of all the money that will free up to build new weapons systems or purchase tanks for a sheriff in Arizona?

The only downside to significantly reducing the sentence imposed on someone who will be deported, is the potential of his return to America under the radar to commit more crimes. That could be addressed by substantially increasing the penalty for illegal reentry under 8 USC §1326(.
 
As Mitt Romney argued in his first debate with President Obama, every cost the government paid should bear up to scrutiny as whether it is worth borrowing from China to pay. This applies to imprisoning criminals who will be deported upon completion of their sentences. It’s just not worth it.