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July 14, 2011

"Re-Thinking Illegal Entry and Re-Entry"

The title of this post is the title of this new paper about federal sentencing for immigration offenses by Professor Doug Keller and now available via SSRN. Here is the abstract:

This Article traces the history of two federal crimes that have long supplemented the civil immigration system and now make up nearly half of all federal prosecutions: illegal entry and illegal re-entry.  Little has previously been written about the historical lineage of either crime, despite the supporting role each has played in enforcing the nation’s immigration laws, particularly along the U.S.-Mexico border.  

This Article takes a critical look at the use of each crime -- from when they were initially conceived of as a way to deter illegal immigration, then as a way to target dangerous aliens, and most recently as a way to do both.  These shifting strategies, however, have all had one thing in common -- ineffectiveness.  The crimes have never meaningfully deterred illegal immigration, and the government’s poorly designed proxy to determine if an alien is “dangerous” has ensured that prosecutions have not made the public safer.  The most recent period has been particularly troubling -- over 75,000 combined prosecutions a year, at the cost of well over a billion dollars a year and at the expense of prosecuting more serious crimes. Despite these huge costs and the related human carnage, the criminalization of illegal entry and re-entry is invariably left out of the discussion of comprehensive immigration reform, which is emblematic of the silent treatment these crimes have received in the literature on immigration policy and criminal law more generally.  By reviewing eight decades worth of ineffective strategy, this Article makes a case for why the enforcement of the crimes of illegal entry and re-entry warrants more attention and a fundamental re-thinking.

July 14, 2011 at 07:03 PM | Permalink


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