Double Punishment: Deportation After Incarceration

In 2013, over 73,000 individuals in US state or federal prisons were not US citizens. That figure represented roughly 5% percent of those institutions’ population at the time. Many, if not most, of those individuals face deportation upon completing their sentence.

I first became aware of such cases while tutoring in New Jersey’s prisons. Non-English speaking students who could not produce a high-school diploma, even if they had indeed completed their education in their previous country of residence, were required to take classes alongside their peers. None of the professors I came across, however, spoke Spanish. As a result, those from abroad, an overwhelming majority of them Latino, sat in the corner. Their favorite topic of conversation, I came to find out, was what they would do when they got home. This is a popular topic for everyone stuck on the inside, but for these individuals it held a special meaning.

Such individuals who had come to the United States in search of economic opportunities but lacking government authorization were certain to be transferred after the end of their sentence under lock and key to a (usually private) detention center, where they would await deportation. If they came from a country like Mexico with a relatively high frequency of deportations, they would be put on plane back to their country of citizenship within a few days or weeks. If they hailed from a country with less deportees, individuals could languish for months to, in some cases, years.

This perverse form of double punishment came to the surface in 2015 when the Federal Bureau of Prisons released 6,000 individuals that had been convicted under the harsh mandatory minimums born of the 1980s increase in the use of crack cocaine. Almost 1 in 3 of those individuals selected for early release were non-citizens. As such, all of them were deported upon release from prison.

Is not incarceration or deportation a sufficient (or even overly draconian) punishment in itself? If we suspend potential fundamental opposition to deportation and incarceration as manifestations of power and injustice, it seems as though a more reasonable solution could be found beyond making an individual serve their entire sentence and then face removal from the country that has just spent hundreds of thousands on punishing them.

In the current role, incarceration acts solely as a deterrent for those on the outside. What is the point in “punishing” or, at its most optimistic, “reforming” an individual who most likely will not return to the United States.

With Trump’s repeated pledges to target immigrants convicted of crimes for deportation, it seems likely that the regime of double punishment will continue. At a state level, nonetheless, lawmakers could work to excuse those sentenced to deportation to also be forced to serve prison time. Or alternatively, they could work to shield their state’s residents by not cooperating with Immigration and Customs Enforcement (ICE). From a progressive perspective, the arguments for doing so seem clear. And perhaps there is a conservative case to be made as well, rooted in savings from lowering incarceration rates. But as of now, such common sense seems in short supply.