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Extraterritorial Punishment

20 New Criminal Law Review 66 (2017)

Posted: 3 Aug 2017  

Emma Kaufman

University of Chicago Law School

Date Written: July 5, 2016

Abstract

Repatriation treaties permit non-citizens convicted of crimes in the United States to serve their sentences abroad. The reach of these treaties is vast: together, they provide for the transfer of tens of thousands of prisoners in American custody. In practice, however, repatriation is remarkably rare. In recent years, the federal government has transferred less than one percent of all prisoners eligible for repatriation. Between 2000 and 2010, the fifty states — which imprisoned roughly 70,000 non-citizens a year — repatriated a total of 150 people.

These numbers are not driven by prisoners' desire to stay in the United States. Instead, the critical feature of repatriation is resistance from prison bureaucrats, who often determine that prisoners are "too American" or that their crimes are too severe to license punishment in a foreign jurisdiction. This article examines bureaucratic resistance to repatriation. Drawing on case law, legislative history, statistics, and prison policies, it connects low repatriation rates to a conflict between two theories of punishment: one in which the criminal sanction binds a person to the place whose laws he has offended, and one in which the location of punishment is severed from the authority to punish. Ultimately, prison officials' reluctance to repatriate prisoners reflects a concern about the legitimacy of extraterritorial punishment. Whether or not that concern should change repatriation law, its existence highlights a growing gap between the legal justifications for imprisonment and the actual practice of punishing people in the United States.

Keywords: Prisons, Immigration, Sentencing, Citizenship, Repatriation

Suggested Citation

Kaufman, Emma, Extraterritorial Punishment (July 5, 2016). 20 New Criminal Law Review 66 (2017). Available at SSRN: https://ssrn.com/abstract=3012111

Emma Kaufman (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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