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Immigrant Criminals in Overcrowded Prisons: Rethinking an Anachronistic Policy

146 Pages Posted: 21 Sep 2012 Last revised: 12 Aug 2014

Peter H. Schuck

Yale University - Law School

Date Written: August 1, 2013


Under an Immigration and Nationality Act provision dating to 1917, deportable immigrant criminals must serve their entire sentences in the U.S. before being removed from the country. (Exceptions, enacted in 1996, are seldom used). At the same time, federal and state prisons are dangerously overcrowded, with the Supreme Court soon to rule on the constitutionality of overcrowded conditions in the California system. The paper shows that the most common proposals for reducing overcrowding are either politically difficult (e.g., shorter sentences) or numerically insignificant (e.g., decriminalizing drug possession for use). The paper proposes instead, or in addition, to facilitate the earlier removal of deportable criminals and analyzes the legal, policy, and diplomatic changes that would be necessary to implement this approach.

Keywords: immigration, criminal procedure, prisons, international law

Suggested Citation

Schuck, Peter H., Immigrant Criminals in Overcrowded Prisons: Rethinking an Anachronistic Policy (August 1, 2013). 27 Georgetown Immigration Law Journal 597-748 (2013); Yale Law School, Public Law Working Paper No. 266. Available at SSRN: or

Peter H. Schuck (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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