Tuesday, October 11, 2005

Should Noncitizens be Deported for Criminal Behavior?

I'm taking an immigration law class, so I've been thinking about this issue. Does it make sense to deport noncitizens for committing crimes?

Deportation on criminal grounds makes sense for two reasons: First, it serves a deterrent, an added form of potential punishment for the commission of a crime. Second, it removes potential criminals from our midst.

But only certain crimes should be grounds for deportation. Aggravated felonies should apply for both of the above reasons. While prison terms are deterrents, the added deterrent of being removed and sent back to the criminal’s country of origin (a place he would probably not want to be as much as here) would likely deter more criminals from committing these crimes.

Moreover, as the Supreme Court recognized in Ewing v. California, often times violators of felony laws are recidivists who will likely commit the crimes again. So we can remove these public threats without having to bear the cost of housing and feeding them.

Obviously there is a countervailing consideration. Immigrants are usually here for reason. They provide a benefit to society. If we deport them we lose that benefit. But where the crimes committed are heinous enough to make them a public threat, the costs outweigh the benefits and deportation seems justified.

Lesser crimes, including “moral crimes” are less of a basis for deportation. While society clearly has an interest in deterring these crimes (otherwise they would not be on the books), the cost of removing people for minor crimes might be too great. Certainly noncitizens would be less likely to commit these crimes if the punishment was removal. But these crimes are considered minor for a reason; we do not feel they are sufficient breaches in public conduct to warrant extreme punishments.

These crimes, due to the lack of sufficient deterrent, are probably more common than more serious crimes. So deportation would not serve the second ground, that of removing dangerous criminals from out midst because they are probably common anyway and will likely be commited by others.

So it would seem the benefit they provide to this country would likely outweigh the cost of removal. We do not need strong deterrents for these crimes because they aren’t that bad, nor do we need to remove a threat.

It would therefore seem rational to deport only for serious felonies and not minor crimes. Where we draw the line is an interesting question, but it probably should be somewhere along the lines of the misdemnear-felony dichotomy contained in our criminal laws.

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