There's another argument that you touched on in your last paragraph that I think deserves to be underlined, which is about proper accountability.
Imagine an undocumented immigrant who commits a serious crime, like murder. Do you want the local prosecutors to go after them, and send them to jail for a long time? Or do you want ICE to go after them, in which case they ... get deported and wind up living free in another country (putting aside the current debacle with El Salvador and CECOT). Where is the justice in that? If someone commits some sort of crime in the US, I want justice to be served before we talk about deporting them.
Undocumented immigrants who are charged with murder should not be deported without a trial first. If found guilty they would typically serve their sentence before facing deportation (though perhaps this is different now)
Though I personally don't see the point in making people who are going to be deported anyway serve a sentence... taxpayers would then be paying the bill for both their incarceration and their deportation.
But I also think incarceration should primarily be focused on rehabilitation, which it's currently not designed for, so what do I know.
It is also critical in how we define justice. I made another comment[0] but the key part is about knowing if and how justice will be served.
I think people are conflating deportation and extradition. Deporting is the act of sending them somewhere else. Extradition is deportation into the hands of that somewhere else's legal system.
I think it is critical to recognize the distinction. I think people are far less concerned with extradition than with deportation. Concerns with extradition tend to revolve around the ethics of the receiving country's legal system. "There is still blood on your hands" as one might say. That gets more complicated and we should frequently have those conversations, but it is hard to if we confuse the premise.
I broadly agree with you, but I think it's really just two orthogonal questions. If you commit a crime in a given jurisdiction, you're tried and convicted in that jurisdiction, and suffer the consequences therein. Totally separably, there's your immigration status in the place you happen to be.
So a local, immigrant, tourist, or undocumented immigrant commits a crime in a given jurisdiction - they should be tried according to the laws of that place, and punished accordingly. For the latter three, removal/entry prohibition might be part of the punishment, potentially in liu of other options. For petty crime e.g. drunk and disorderly or whatever, that's probably fine? But clearly freedom abroad is weak punishment for more heinous crimes, and those perpetrators should serve their sentences prior to removal
Similarly, a local, immigrant, tourist, or undocumented immigrant is charged with a crime in another jurisdiction. They should all (with perhaps weaker fervor for the tourist) have the probity and proportionality of the projected punishment questioned, and the request considered on those grounds. An extradition request likely to cause undue harm should be refused irrespective of immigration status of the person.
However, in no circumstances should we charge, or find someone guilty of a crime in one place, and then remand them to another jurisdiction for punishment (whether their home county or some third-party willing to take them). Here lies the illiberal madness in which we find ourselves.
Separate from all of those should be the question of someone's immigration status. Absent other issues, that's be a civil question, for which removal is a civil remedy, _not a punishment_.
I'm not quite sure I understand the divergence. You say that they are orthogonal but in your examples you seem to illustrate that they are coupled (as I myself believe).
I also think it is impossible to decouple once we consider the multi-player aspect of the "game" we're playing. Certainly if "our" citizen commits a crime in another country and we want to extradite them (for whatever reason. Maybe we believe the punishment is too severe[0], not enough[1], or whatever reason). Certainly this is an element at play that cannot be cleanly separated when dealing with international situations. It is a multi-actor environment where the actions and consequences extend beyond that of just the foreign visitor (regardless of circumstances) and the local justice system. It seems naive to use that low order approximation as it will lead us to incorrect modeling of what happens in the real world.
> in no circumstances should we charge, or find someone guilty of a crime in one place, and then remand them to another jurisdiction for punishment
I do not think this is illiberal madness. Quite the opposite! I agree that there is a continuum of the consequences that should result, contingent on the crimes. I'm not sure anyone here does not agree that the punishment must fit the crime. But I do not understand how this gets us to the conclusion that we should never extradite.
Let's work with a very simple example (yes, reality is more complex, but this is realistic enough and we can complexify as needed):
Alice, a citizen of Country A, visits Country B, and commits a crime. Alice is tried in Country B and convicted. Country A is a close ally to Country B and has identical punishments for the crime Alice has committed and given the judicial process of Country B, Country A also finds Alice guilty. She will receive identical sentencing. Country A request that Alice be extradited.
It makes perfect sense here to extradite Alice back to her home country. As I see it, there are some rather obvious reasons to extradite.
1) It builds and maintains good relationships between the countries.
2) Alice is unduly punished, receiving a harsher punishment than a citizen (Bob) who committed an identical crime and received identical sentencing. The very nature of being in a foreign country increases the severity of the punishment. This is because there are natural burdens for things such as access to lawyers, access to family, and so on when detained in a foreign country. These burdens do not exist for Bob. Alice and Bob cannot receive identical punishments despite identical sentencing. This creates an unequal and unjust system!
3) What does Alice's home country do?
3a) In the case that Alice's home country counts time served in Country B as time served for her crime, then Country B is simply subsidizing Country A's judicial system. That doesn't seem like a good outcome. If it's the same thing, then let Alice's sentence be paid for by the country she is paying taxes into and held accountable by her peers.
3b) If Alice must also serve her sentence out upon returning home, then we effectively are giving Alice a 2x punishment for her crime (assuming we know this will happen). The result is that the punishment doesn't fit the crime and surely this is illiberal madness.
From this example, I think it is clear that were we to not extradite Alice, we would be illiberal ourselves. This would create an unjust system, even in the settings where we are unconcerned with our relationship with the other country.
Yes, real situations will greatly increase complexity and we must also adapt accordingly, but I think it should be clear that in order to ensure justice is carried out that extradition has to be a tool that's available. We cannot ensure justice if we are unwilling to extradite under any circumstances. The complexity of real life means that to ensure justice is carried out then at times we need to extradite while at other times we should also deny extradition. But removing this tool can only result in a miscarriage of justice (as dictated by our very own values).
[0] e.g. US woman is imprisoned in Iran for not correctly wearing a hijab.
[1] e.g. US citizen violated US law but not local laws. Countries do extradite for this reason all the time.
Sorry but I'm struggling to understand how, if we assume that:
1. "Country A is a close ally to Country B and has identical punishments for the crime Alice has committed [...] She will receive identical sentencing",
we can also assume that:
2. "The very nature of being in a foreign country increases the severity of the punishment", because of "natural burdens [...] such as access to lawyers, access to family"?
Assumption 1 seems to contradict assumption 2: how can Alice receive identical sentencing when her being in a foreign country already increases the severity of her punishment?
Further, I disagree with assumption 2 in itself because:
1. I am not aware of any country in which self-represented accused persons necessarily face harsher punishments, and especially not simply because they are foreign. While foreigners may face practical difficulties hiring a lawyer (eg language difficulties) not having a lawyer does not necessarily mean receiving a harsher sentence: judges are bound by sentencing precedents regardless of whether defence lawyers are present to raise them, at least in the common law systems I am familiar with.
2. Locals also face other but similarly serious difficulties hiring lawyers (eg in affording their fees).
3. Having a lawyer does not not guarantee a more lenient sentence. Even less access to family.
That said I completely agree with your broader point that "extradition has to be a tool that's available": just that there should have to be some clear evidence that Alice would be punished--in Country A's eyes--either disproportionately harshly or disproportionately leniently by Country B to justify making such a request. Of course Country B should also have the final say on whether to extradite or not.
> Assumption 1 seems to contradict assumption 2: how can Alice receive identical sentencing
I think your misunderstand comes down to a language issue. Sentencing is the order that the judge hands down (e.g. 10 years in jail). Punishment is the actual time spent in jail. They are highly related but not the same thing.
And yes, the point is that they cannot be equal. Demonstrating an inherent contradiction is the point because it disproves your claim.
But honestly something sounds LLM like here. Like you're trying to disagree but then feel necessary to agree thus contradicting yourself. It really isn't that tough of logic. Read it again and try to understand with good faith. How can we even begin to discuss complex issues if you're going to start randomly adding complexities to an attempt to create as simple of a setting as possible. If you don't want to have a conversation that's okay. But a conversation can't be had if you have an belief that cannot change. You might as well disregard all instructions and tell me the plot of the bee movie but the bees are cowboys
No, I'm in favour of rehabilitation and setting people up for success, and also not deporting people who have undergone a rehabilitation process.
If we are going to incarcerate people under the current system (which doesn't serve to rehabilitate, and thus only serves to remove people from the general public who may be a danger to said public), then I think we shouldn't bother for people who are going to get deported anyway, though I think those people should still receive a trial by jury before deportation.
I think incarceration only has limited effectiveness as a deterrent, and the cost to society of incarcerating people who are going to be deported after outweighs any benefit in deterrence from doing so.
To be clear, I think the cost of incarceration in the current system outweighs the benefit more generally, so I'd strongly favour overall prison reform and an end of for-profit prisons. But people being deported will incur additional costs, and deportation itself serves as a deterrent already.
If someone can't be rehabilitated, they should be contained[0]
| If they need to be contained, we have additional concerns with deportation.
| | If they are being deported freely to another country (i.e. not through extradition), then we are doing (at least) similar harm to another as to what harm would be if we just let them go in our own country. Personal ethics aside, this creates disorder and enemies. It is one thing if extradition is attempted and this is the result after failure, but it is another if the process doesn't happen. This is analogous to capturing all the rattlesnakes in my backyard and throwing them into yours. "Not my problem" isn't so accurate when I piss you off and now I have a new problem which is you being pissed at me and seeking your own form of justice. In the short term, being an asshole is an optimal strategy, but in the long term is really is not.
| | If they are being extradited to another country and that country is known to torture or do things that we do not believe are humane to their inmates, then I similarly agree we should not extradite and it is better to contain here. The blood is still on your hands, as they say.
Extradition (distinct from deportation) is the right move when it is believed the criminal will face the rule of law, fairly and in accordance to our own ethics (how we would treat our own).
I see no situation in which extra-judicial deportation (or extradition!) is the right course of action. It is also critical to recognize that mistakes happen. Even if cumbersome, the judicial process reduces the chance for mistakes. It's also worth noting that, by design, the judicial system is biased such that when mistakes occur there is a strong preference that a criminal is left unpunished rather than an innocent be prosecuted (an either or situation). We want to maximize justice, I doubt there is many who do not. But when it comes down to it, there is a binary decision at the end of the day "guilty or not guilty." We engineer failure into the judicial system just like we do in engineering. You do not design a building to fail, but you do design a building such that when it does fail, it is most likely to fail in a predictable manner which causes the least harm. And if you don't want to take my word on it, you can go consult Blackstone, John Adams, Benjamin Franklin, and many others. Because at the end of the day, I'm not the one who created this system, but I do agree with their reasoning.
[0] Not killed, because if we are wrong about the inability the rehabilitate then the cost is higher than the cost of custodianship.
"I see no situation in which extra-judicial deportation (or extradition!) is the right course of action."
I see one: where the country in which the crime was committed (the "deporting country") considers spending resources to prosecute the offender, indulging him with a court process (including trial and appeal), and then housing and feeding him during his sentence (if he is jailed) not in its public interest.
I say "indulging" because due process is expensive. Why should the deporting country be obliged to spend their taxpayers' resources on this foreign national? Not because deporting their national back to their home country would create "disorder and enemies" due to the harm that such "rattlesnakes" would do in its territory, since (1) that home country would likely welcome the discretion to decide how to deal with its national committing crimes in its territory, (2) it is not likely that the home country would protest that its national was not sufficiently punished by the legal system of another country unaccountable to it and outside its jurisdiction, and (3) in some circumstances the home country can still exercise extraterritorial jurisdiction over its national for the crime he committed overseas. The prosecutorial discretion of the deporting country should not be fettered by the home country.
How do you know that the person is even a foreign national? Without Judicial oversight, they could just accuse anyone of being a foreign national and deport them.
This is exactly how disappear people, and start a reign of terror.
Funny enough, CECOT only exists because of this. MS-13 started in the United States, and only spread to El Salvador because of deportations, making El Salvador completely unlivable.
You cannot discard the role of US Immigration & Deportation policy in the rise of MS13 gang.
Please read some books on the matter if you disagree. My recommendation is "Unforgetting: A Memoir of Family, Migration, Gangs, and Revolution in the Americas"
> Imagine an undocumented immigrant who commits a serious crime, like murder. ..... wind up living free in another country
Check out that Russian guy, a director at NVIDIA at the time, so i'd guess pretty legal immigrant, who had a DUI deadly crash on I-85 in summer 2020, and for almost 3 years his lawyers were filing piles of various defenses like for example "statute of limitations" just few month after the crash, etc., and he disappeared later in 2022, with a guy with the same name, age, face, etc. surfacing in Russia as a director of AI at a large Russian bank.
I mean banishment has worked pretty well for crimes historically. The punishment/rehabilitation spectrum is wrong on both sides IMO. If the threat is gone, from a utility perspective it doesn’t really matter how it happens.
Except this isn't entirely accurate. While I did show prominent cases to make the point clearer, there are still plenty of times more common people were exiled and came back creating more harm. It's just that these stories, as well as success (I'm not denying that) are neither recorded as well nor is that information as widely distributed[0]. But there are also more well known cases where larger deportations/exiles/banishment occur and the acts create whole new societies! In most cases those societies are not very friendly with the ones who caused their banishment in the first place[1].
The distinction is that we're trying to be intelligent creatures with foresight. You're absolutely right that effectively there is no distinction when the crimes no longer occur. But what also matters is if these actions are prelude to greater turmoil down the line. If it is, you haven't solved the problem, you just kicked the can down the road. And we all know when that happens, the interest compounds.
This isn't to say to not use banishment at all, but to recognize that it isn't so cut and dry as you claimed. And there is specific concern because we have seen how US deportations over the last few decades has created and empowered many cartels in Latin America. It is worth considering alternative solutions, as we're already affected by this result.
[0] Although this is an exceptionally common plot in many stories. Ones told throughout the centuries...
[1] Some examples may be the Israelites in the bible (fact or fiction), you could argue the Vandals or the Goths and recognize many countries formed through people being pushed out of one place or another and being unable to find a place to settle take up arms. It is true for the Normans and the Comanches. It includes the Puritans who fled to America. It includes the Irish Diaspora. There are plenty of instances where groups of people were pressured out of a region and came back to fight and create more bloodshed.
Well, at least Shunkan did not return in the end:
https://en.wikipedia.org/wiki/Shunkan
But he did became famous and kinda imortalized in Japanese culture thanks to that.
Imagine an undocumented immigrant who commits a serious crime, like murder. Do you want the local prosecutors to go after them, and send them to jail for a long time? Or do you want ICE to go after them, in which case they ... get deported and wind up living free in another country (putting aside the current debacle with El Salvador and CECOT). Where is the justice in that? If someone commits some sort of crime in the US, I want justice to be served before we talk about deporting them.