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Do Not Go Directly to Jail—A Commentary by Peter H. Schuck

The following commentary was published in The New York Times on December 6, 2010.

Do Not Go Directly to Jail
By Peter H. Schuck

PRISON crowding has reached crisis proportions: California’s prisons, the largest state system in the country, operate at almost double their maximum capacity. The conditions there — the legacy of the war on drugs and long, mandatory sentences — are so bad that a federal court has found that they deny inmates constitutional rights to adequate health care and other basic services; the Supreme Court heard arguments in the case last week.

The lower court’s decision requires California to reduce its prison population to about 110,000 inmates from 144,000 by next December. Risks to public safety from releasing that many prisoners will make this almost impossible. But the federal government can take one important step to help states comply: deport many immigrant criminals before they enter prison, not after.

Non-citizen criminals represent a significant percentage of American prisoners: in 2009, some 25 percent of federal prisoners and a smaller fraction of state prisoners were non-citizens; in California, 18,705 inmates were non-citizens. Although the federal government can deport many of them as soon as their criminal convictions become final, a century-old law provides that immigrants can be deported only after they have served their sentences here.

This provision, intended to ensure that the criminals are punished, was enacted in 1917, long before severely crowded prisons were deemed unconstitutional. This was also before legal and budgetary pressures forced prison officials to prematurely release inmates, even those with a significant recidivism risk (in California, as many as 58 percent commit new crimes within three years). Deporting criminal immigrants would make it easier to keep these potential recidivists behind bars.

Fortunately, the law now contains a potentially useful loophole: deportable criminals can be deported without serving their full sentences if they committed non-violent offenses (with some exceptions), and if the appropriate officials request earlier deportations.

As simple as it seems, this exception has rarely been employed. The federal and state governments should use it to remove as many deportable criminals as possible from their prison populations.

This is certainly not a panacea. Not every immigrant prisoner is deportable; it depends on their particular crimes and whether they can obtain a waiver. Also, the immigrants’ home countries might refuse, contrary to international law, to repatriate them, and some treaties require the prisoner’s consent. Even those countries that do accept convicted citizens may not imprison them at all, or not for long. There’s also the prospect that repatriated prisoners, once free, will try to re-enter the United States illegally.

These objections are manageable. Diplomacy, and American cash, might persuade home countries to incarcerate repatriated criminals. The prisoner transfer treaty with Mexico can be renegotiated. And better border enforcement is already reducing re-entries.

Other options are themselves problematic or have already been tried and proved inadequate. It is costly and unpopular to build new prisons and hire more guards; California, amid a severe fiscal crisis, is already spending $9 billion a year on corrections. Easier probation and parole have their limits. Structural changes, like decriminalizing non-violent offenses and reducing the length of sentences, are promising reforms but hard to accomplish politically.

The Supreme Court will, in all likelihood, uphold the lower court’s findings that California’s prison conditions are unconstitutional, but will cut officials some slack in managing the remedy. That gives states and the federal government the room to try new approaches. Accelerating the deportation of criminals who will eventually be deported anyway would not end the overcrowding problem, but it would surely help.

Peter H. Schuck, a professor of law at Yale, is a co-editor of “Understanding America: The Anatomy of an Exceptional Nation.”