 I know no one comes to a conference to hear the dean's welcome, so I'm going to keep this very short. Most of all, I have the opportunity to thank my college student, who worked so hard organizing this department. I don't see her in the room, but I want to thank and encourage you to thank Brittany Rodriguez, who plays a key role in coordinating all of the details of the garden today. One person already said to me, it's one of the best organized conferences she's been at, and it's only the beginning, hopefully the better to be there. Please do thank Brittany, all of our staff who have been involved. This conference is so important to the law school and many levels. All that it is, the office is on immigration law here. We're very fortunate to already have two experts in the field, Stephen and then my colleague, Jennifer Tong, who will be hearing from the panel. We added another expert in the field, Samir Asher, who's going to be joining us in July to create the immigration law here. I don't know if we'll be able to build through this, because it's very strange. As I described to people, my vision of the law school, I always emphasize the need for us to both be practical and theoretical at the same time. This reflects my own view that for all too long, people have tried to draw a false distinction between practice and theory. And as you know better than I do, immigration law really brings together practice and theory. There's no other law that touches people in more important areas than immigration law. At the same time, it also raises some of the most important and difficult policy questions for society. As I look at the wonderful program we're seeing together, I see exactly these questions reflected throughout. It's great for me to get to welcome you to UCI Law School. I hope all of you are here and get a sense of our facilities and the place that we're building. The Law School is the first floor of this side of the building. We have three large classrooms here, a courtroom next door and a large classroom on the other side. Administrative offices over there. We have all four floors of that side of the building. The library is the first two floors. I hope you go in and look at the library. Please feel free to use the library for anything you need while you're here. We have faculty offices and classrooms on the third floor. And there's some faculty offices on the fourth floor. And the rest is under construction. There's only 18 more faculty offices and three more classrooms there by July. We also have a half of the building just across the way. You can see it through the screens there. The clinics are on the third floor of that building. As I said, we have a immigration law clinic getting involved. And then the fourth floor is where there's an indoor student lounge. If you want a place to relax, please go ahead and use the facilities there. As well as there's classrooms up there. The law review office will support SBA through services and the like. So please do walk around and enjoy the facility. I was going to tell you, I hope you'll also enjoy the wonderful Southern California weather. I've been told by some of New York, it's nicer in New York today than it is here. But it won't last there and it will here. I want to thank more of your time. Really, as I said, a great pleasure to welcome you here. Let me turn it over to Stephen Lee. This is the event he's going to be recording. And because I don't have any of the folks each of our crew members. This is great. Welcome to Orange County. Welcome to B.C. Irvine School of Law. I'm tremendously excited to spend the next day in and out with all of you. Working through some of the most recent issues within immigration law. By way of background, I should say that this symposium is just one in a series of symposia which the faculty had been organizing over the course of the last year. Like much of the law school, our law review was a start-up organization. So the faculty thought that one way to support our student-edgers was to organize symposia with a top line in our respective fields. Could come to UCI, generate a batch of high-quality papers, and have those papers published in the nation by very promising law reviewer. Now, why is symposium immigration particularly different? Why take on the immense task of the second year professor of organized immigration? Yeah, okay, so a few reasons. So first, immigration law and immigrants' rights are concerned that are deeply relevant to some of the topics. In LA County, 60% of our four families are mixed-dance families. Just a power from here in the Temecula region, the number of cities that passed a law review, the quality of the businesses there, to E-verify student-based union workers. Relatedly, although Congress passed IRCA in 1986, let's not forget that in California, first and foremost, they've evolved 15 years before that. So very relevant to a local community. Just to throw in a little bit of the Orange County LA rivalry, we'll often joke about the cultural chasm that separates it to you, but I'll tell you one way in which they are exactly alike is in their participation in the 207G program. So the uninitiated 207G is just a program where local enforcement agreed to carry out immigration enforcement. So are Riverside and San Bernardino. So for all of these reasons, I think that you see that in our communities, when viewed through an immigration lens, much of that thing, basic questions of identity and affinity, of working solidarity and of power, and the legitimacy of that power, all arise just a few miles beyond the boundaries of our vertical candidates. So a second reason why I wanted to put together this podium is what Erwin touched on. That is, I think it is one of our core strengths. One of the reasons that I was attracted to UC Irvine as an MP-level professor was this intellectual community devoted to addressing and solving the most pressing immigration in the law school itself. I have colleagues at UC Irvine, and I can't resist doing wonderful immigration, and the way that it works. But on main campus, it's a wonderful community. We have a team, we have a rundown, a French beam. At its usual level, we have a Center for Law Society and Culture, the Department of Criminology and Law and Society, the Center for Research and Immigration and Social Policy. These are all major hubs for immigration research. So in that regard, it was also an EV cell on top of the weather. I'm trying to look into this. The top immigration school comes in. Third, and finally, I see this as being a part of my hope that the symposium can further develop the school's public service mission. I see it as part of the school mission to provide an education that is not only innovative and of the highest caliber, but also one that is relevant to and proves the lives of those in our students. I think in this regard, I try with the Asian language studies and ethnic studies tradition that public universities cannot exclusively serve in these fields. We should also fulfill a redistributed function as well. If many of the local issues are grounded in the course of immigration law and UCI possesses the capacity or resources to bring together the top people in the field, then what we should do so? We should do so and create a record, and we should publish these papers, and we should try and use discourse and policy in a more fruitful and just direction. Now, why the theme puzzles? I learned just a few minutes ago from Ruben Rondau that several years ago he put together a symposium that was, what was it? Ruben puzzles and paradoxes. An immigration research. An immigration research. So not entirely derivative of his work. I did drop the paradoxes in a place of research with law. But I think that if I can even approximate some of Ruben's mojo, I think that I'm doing well. But in seriousness, I think more than other areas of law, immigration law seems to be filled with impossible choices and conclusions. Just to share a personal story, someone in my extended community is here without authorization, and he learned that a few years ago that a close relative in San Francisco was just passed away, and he wanted to return that company to attend his funeral. What did he do? Did he go and risk being unable to re-interrogate the lady baby? Did he say, this is an experience of intensification of the feelings of the alienation he already feels here? Then what do we do with the story of the complex formation of border source strategy? What do we do when the ironic observation that the increased cost associated with crossing the border actually served to deter people from going back to the center? What do we do with laws like Arizona's SB 1070, which claim to enforce federal immigration laws and claiming to prohibit racial co-filing? What do we do with that line of reasoning when the Supreme Court's fourth amendment turns a blind eye to it? In fact, permits these. What do we do with these? These are not new concepts to many in the room, but I think it does encourage us to relate to the critical eye to all of this. And not just so quickly watched to harmonize and recognize how this conflict is related. As a law student, I often have to harmonize two cases that seem to come out in opposite directions. Find the common ground. And I think that immigration law really led itself to the conclusion that contradictions are just a condition of conflict. Finally, just by way of logistics, as I mentioned, the event is being recorded. So just know that whatever brilliant functions you pose to these speakers will be memorialized and watched on YouTube. Second, I want to echo Irwin's encouragement to visit the facilities. I got the blessing of our Dean of Library Services, to have people come up and see our wonderful facility there. We have rocking chairs if you just want to fight off or succumb to the bukoma, go up there and walk into the facilities. And finally, I think we need internet access for the non-UCI books. I believe we have that way once you respond. So with that I would turn it over to the support of the symposium, which gives me a chance to learn from some of the best people in my field without leaving the comfort of my own. That's a great pleasure and a luxury. I want to also extend a hearty thanks to my colleagues Stephen Lee, whose significant work is responsible for this stereotype coming together. And I want to thank you for letting me talk about this group. A lot of people have said congratulations, this is a great conference and I say, I didn't do the work and they say, oh yeah. And I say, no, I really don't have this work. Stephen did everything and all the things he's supposed to do carefully. And of course, thanks to the many members of the staff who responded on this symposium including Brittany for excellent organizing and planning and managing to thank all of the speakers who took a great deal of time out of their busy schedules to travel to be here with us today. And I want to thank all of the members of the audience from around campus and from all beyond for coming out to support this event. It makes it much more exciting to have so many different scholars community members and great minds in the field with us. The panel that I will be moderating is entitled managing immigrants and criminal law. As many of you are aware, this is a topic that's become the focus of increasing attention over the past two decades as a result of a contest of factors including, but certainly not exhaustively the expansion of criminal law grounds that serve as a legal basis for deportation and non-citizens the increasing assistance of state and local law enforcement in the enforcement of federal immigration law the rise of state and local criminal ordinances such as Aragones SB 1070 that target unauthorized immigrants and attempt to achieve a sort of immigration enforcement through attrition at the state and local level. And the rapid rise in the federal prosecution of non-citizens for immigration-related crimes such as misdemeanor entry without inspection and felony re-entry as well as smuggling and human trafficking offenses. These are some of the trends. The different scholars have analyzed under the rubric of the increasing inflation and overlap between the criminal immigration systems. Although these trends implicate the broad topic of this panel in very different ways, they're all related in that they contributed to the increasing entanglement of the management of migration and the criminal justice system. To help us examine at least one small corner of this complex topic with a focus on non-citizens who are in the criminal justice system, we have two wonderful panelists with us today. Or we will, we hope. Here is Enroute. He flew in, he landed some time ago and I think is in taxi. So we're hoping that he will be with us shortly. He is the Simeon E. Baldwin Professor Emeritus of Law and Professor of Law at Yale Law School of Rights Health and Chair since 1984. He has major fields of teaching and research for tort law, immigration, citizenship and refugee law, groups diversity and law and administrative law. He's a member of the American Law Institute's advisory committee for the restatement of courts and contributing others to the American lawyer. He also created Cornell and his baby from Harvard Law School and LLM and International Law from NYU where he's currently a lawyer. He's well known among immigration scholars for his thoughtful and his remarkable support. In the paper that he's presenting today, he takes aim at the problem of overcrowding in American prisons and jails. While remaining open to a variety in major deduction measures, Professor Schach proposes one that is not frequently on the line to prison reform advocates or policy measures. Using removal as an alternative to incarceration involving certain non-citizens. In the paper that he shared with someone who is an expert in prisons and prison conditions, Terry Miller is a member of the law faculty at the University of Buffalo which he joined in 1995. Miller researches and writes about prisons and also about the growing use of immigration law to affect criminal law enforcement outcomes. She regularly travels through New York state evaluating conditions of state prisons on behalf of the Directional Association of New York. She's a member of the Department of Justice. Terry exposes how administrative, regulatory, discretionary influences of civil immigration law have affected the criminal law enforcement system. Creating a space for discretionary decision making is all things that are traditionally rights based on judiciary issues, issues like the right to bail. Because we have 15 to 20 minutes. And then hopefully we'll let Peter go. 15 to 20 minutes. And then I have a few questions for the panelists that I would like to ask them myself and give them an opportunity to ask questions of one another. And then I want to open this up obviously to all of you. So with that, I'll turn it over to Terry. Can you hear me? Terry. Hi, my name is Terry Miller. It's a real pleasure to be here. It's a beautiful law school. It's a beautiful place. I feel very privileged to have been invited by Professor Lee to attend this symposium. And I also want to thank Jennifer for agreeing to moderate the panel as well. She is a brilliant voice in the scholarship and the convergence of criminal and civil immigration and crime control. And it's a real honor to set up your rhythm. So the puzzle I'm grappling with is part of this convergence between immigration and crime control. And I just want to give you a roadmap as to where I'm headed. So if at any point I lapse into any coherence, you'll already know what I'm doing today. So the first thing I'm going to do is spell out a few points of this civil criminal immigration crime control convergence paying particular attention to the growth of civil penalties for criminal conduct and the growth of immigration crimes. I then will talk about that trend reproducing itself in immigration law enforcement and describe that enforcement landscape a bit for you. Paying some attention to the ICE access programs and other means of cooperative ICE cooperative working with state and local law enforcement officers. I then want to describe some of the slippage in procedural protections that has occurred when civil law enforcement is merged with criminal law enforcement. And I argue that procedural slippage that gray area around what is criminal and what is civil law enforcement does not serve the criminal system well. It lacks adjudicatory procedural protections and I'll describe some of the unintended consequences of that. I'm going to touch on Pidea versus Kentucky and the recent reforms in civil collateral penalties work in general and end with sex offenders. So here we go. I'm interested in the points of convergence between two systems, one criminal and one nominally civil. The civil system is the system that removes non-U.S. citizens with present or past criminal convictions for which deportation is a consequence and removes non-U.S. citizens who are out of status, for example visa holders who are not in compliance with the terms of their visas. The criminal system that I'm talking about is what we think of as the criminal justice system, a system that's charged with investigating and prosecuting crime. When I first began writing about the convergence of crime and immigration control, the most striking aspect of this convergence was the proliferation of immigration consequences for non-U.S. citizens who transgress the criminal law. The exclusion, removal of those individuals. The other striking aspect that was the expansion of criminal penalties for immigration law violations, many of which were previously only treated as civil law violations. So they had immigration consequences like you might be deported, you might lose a visa or a status, but you weren't going to be incarcerated. And now you see that penalty in marriage fraud, document fraud, things like voting in a federal election as a non-citizen. The criminalization of what were previously civil violations. In addition in this in this proliferation of criminal penalties we saw mandatory detention provisions, excuse me, mandatory detention provisions of the anti-drug abuse act of 1988 and the illegal immigration reform and Immigrant Responsibility Act of 1996. They raised a great deal of concern particularly because long-term permanent residents with criminal convictions, some for minor crimes, some not, they were detained in civil immigration authority in county jails and federal immigration lockups. So people with a vested state in the long-term state in the United States because of criminal transgression being renewed. Now in the past few years it's become clear that these harsh reforms and the conversion they prompted are here to stay. Comprehensive immigration reform bore the potential for dismantling aspects of this convergence and attenuating some of the punitive aspects of the new immigration control regime. But it's clear that moment has passed. And in its wake two important developments have occurred. First, state involvement in federal immigration law enforcement today. Professor Shikham refers to this as the increasing permeability of the border between immigration of enforcement and crime control. Second, immigration law enforcement efforts themselves have expanded rapidly. And I will describe some of these. These trends continue the convergence of immigration control and crime control, rendering or pay the boundaries between civil and criminal law enforcement federal and state law enforcement, deportation and punishment. For example immigration and customs enforcement or ICE has aggressively sought the cooperation of state and local enforcement law enforcement agencies to aid in the enforcement of federal immigration law. ICE has rolled out a host of access programs 13 and all. There are access as an acronym for agreements of cooperation in communities to enhance safety and security. In which it works cooperatively with state and local law enforcement agencies to identify and apprehend immigration violators via a host of tools that include biometric information sharing with local jams or secure communities, one of the 13 ICE access programs. Deputizing police officers to enforce federal immigration law of what professor Lee described as the 287G program and the criminal alien program which puts immigration officials in local jails in prisons. Now there are many aspects of this new immigration enforcement regime that raise significant legal policy issues. I would like to pull out and examine the small piece. There's a lot going on here. But I'm particularly interested in the manner in which immigration civil regulatory functions civil regulatory authority functions within and affects the criminal justice system. When I first began writing about immigration and crime control merging I made a speculation and I speculated that the convergence of these two systems was more than just the criminalization of immigration law. More than just the techniques, objectives, processes of crime and crime control exerting themselves within the civil immigration system. I posited that this convergence was in fact a dynamic process by which both systems converge at points to create a new hybrid system of social control that draws from both immigration and criminal justice but is purely neither. So I envisioned the presence of civil regulatory administrative and inherently more discretionary practices of immigration control working their way into the criminal justice system. And lastly I foresaw a criminal justice system in which the rights of the criminal accused were treated more like privileges. Less absolute more discretionary. I think Steve Lagosky put his finger right where it hurt when he described what he calls the asymmetrical incorporation of criminal enforcement norms accompanied by the explicit rejection of the procedural ingredients of criminal adjudication. In other words importation of things that we think of as criminal law enforcement in prime control but without the procedural protections that all people who are criminally accused brought into custody arrested convicted so forth enjoy. While much of the scholarship has focused on the criminalization of immigration law the importation of these processes criminal categories and techniques into the civil regulation of immigrants much less attention has been given to the impact of the immigration system's civil regulatory power when it's deployed within the criminal system. The expansion of immigration law enforcement in cooperation with state and local police provides an opportunity to examine the manner in which the civil regulatory and administrative aspects of the federal immigration power has infused into local law enforcement these discretionary and administrative processes. Processes that in fact clash with what we think of as a traditionally adjudicatory rights-based regime of criminal procedure. While some may see these administrative discretionary aspects of immigration control as advancing policing i.e. ICE ultimately I believe it subverts the objectives and the legitimacy of the criminal justice system. Now, I spell out this project that I hope to accomplish which is to identify where these civil regulatory practices insinuate themselves into a more adjudication based due process laced criminal system. But first, in order to do that I have to kind of identify where the civil immigration power the purely civil immigration power kind of injects itself into the criminal system. So I chose as an arena to look at the ICE access initiatives or some of them and really to focus on those because they involve the purely civil functions of identifying, apprehending, and removing non-U.S. citizens who are either deportable for criminal convictions or out of states people like undocumented migrants or visa violators. Therefore, I will consider the largest and most widespread of the ICE access initiatives the criminal alien program, secure communities and 287G programs. I will also talk about what has become an indispensable tool to link civil immigration law enforcement power with state and local law enforcement officers and police. And that is the ICE detainer the immigration detainer, what some people call the ICE hole. It permits immigration officials to assert authority over the individual in the custody of local police. So this ICE detainer is authorized by HCFR 287.7D and it permits any authorized ICE agent or a local police officer who's deputized to enforce federal immigration law under a 287G program. It permits them to request that a local law enforcement agency notify ICE detainer to release a person against whom a detainer has been lodged. This gives ICE the option to take the person into custody. The detainer is limited to 48 hours, not including weekends and holidays. But as you will see, that is where some of this procedural slippage comes in when the detainer tool is used within the criminal context. So there, I'll tell you a little bit about just a brief description about these programs. The criminal alien program or the CAT program identifies non-U.S. citizens with criminal convictions. They're deportable. And that program works by placing ICE officers into state and local prisons and jails. The program is administered by the ICE Office of Detention and Removal Operations and since its inception has become one of its inception in the mid-1980s. Since its inception has become one of ICE's longest running, most successful and most extensive local federal partnerships. It's been through a number of incarnations. And I won't go into those, but to say that throughout the incarnations, the goal has remained the same. Identified criminal aliens incarcerated in state and local jails and prisons prevent their release into the general public by securing a final order of removal prior to the termination of their sentence. So ICE comes in, ICE officers will interview sometimes videotape or videoconference with who have been identified by the prison as possibly of foreign birth and will try to ascertain through checking their databases whether that person is deportable. At that point try to get an order of deportation to finally get deportation order on them. At the genesis of the convergence of immigration and crime control, when blurring the lines between civil immigration and crime control was more novel, this program, CAP, generated less controversy than many of the other ICE access programs might have at the time. And you can imagine why, right? You're going into prisons, you're going into jails, and you're finding people with criminal convictions who may be non-U.S. citizens and you're removing them. It's a disfavored population, right? Convicted felons, criminal detainees, and this is going on at the precisely at the height of the war on crime. You've got broken windows policing, get tough policies toward criminal offenders. So this program, the criminal alien program gained early acceptance, largely because ICE itself popularized, you know, the law enforcement of immigration enforcement, popularized the notion that dangerous criminal aliens were being released from criminal custody and returning to the streets to re-event. Now, CAP by all measures has been one of ICE's most successful initiatives. It's responsible for 48% of all the portable immigrants identified by ICE in the 2009 fiscal year. More than the 287G program, fugitive operations and the Office of Field Operations combined other access programs. Yet a large percentage of immigrants apprehended under CAP are not criminals at all. An October 2009 Department of Homeland Security report found that 57% of immigrants identified through the CAP program in the 2009 fiscal year had no criminal convictions. Up from 53% in 2008. So despite ICE's representations that CAP is enhancing public safety by netting the worst of the worst, right, this data suggests that local police are pulling in low-level and first-time non-U.S. citizen criminal offenders. Many of whom are being charged with misdemeanors and making them available to ICE for screening. For example, a recent study of immigrants screened by ICE and placed under ICE detainers were arrested excuse me, placed under ICE detainers. Most of them were for a misdemeanor as a serious charge. And in 2008 58% of the detainers were placed on those charges of misdemeanors. Up from 38% in 2007 and 34% in 2006. So you see a growing connection between not taking dangerous criminal aliens off the streets, right, through this law enforcement initiative, this partnership with federal immigration and state law and local police and jails. But you begin to see a pattern of bringing low-level criminal offenders misdemeanors into jails. And the question becomes is ICE providing incentive for this to happen, right? This study and others like it suggest that local police participation in CAP is really intensifying criminal scrutiny of people they believe to be undocumented or foreign and possibly engaging in racial profiling. And given the point of contact between ICE and the jail after arrest but not before, excuse me, after arrest but before a criminal conviction, right? The opacity of the boundaries between crime control and immigration control, you know, so it makes this seem highly plausible that this is what's going on. That there are incentives that are restructuring the way criminal law enforcement officers are working. This suggests that the convergence of immigration and crime control and local policing plays a significant role in augmenting the use of police discretion to make arrests for suspected violations of civil immigration law that would otherwise be unauthorized or illegitimate as a matter of criminal procedure. Secure Communities is another program that involves biometric information sharing, right? Basically, ICE says that's what we're doing. We're simply we are simply having municipal and county jails check the names of people that they bring in at the time at which they're arrested and booked, right? Booking is just an administrative procedure once the person is brought into the jail. They are booked, vital information is taken about them, their criminal history is discovered, their personal copies inventory, their photograph and their fingerprint. But if there's a hit in the ICE database of their name, right? Then ICE comes in, lodges a detainer and regardless of the ultimate disposition, any criminal charges that may have been filed that person is bound over to the custody of ICE for processing removal process. So, you know, ICE will come in determine the appropriate enforcement action, typically issuing this immigration detainer. Secure communities is very active. It's in as of last week in 1049 jurisdictions in 39 states. And by 2013, ICE plans to have a Secure Communities presence and each and every one of the 3,100 state and local jails across the country. ICE is also planning a pilot program in Florida that extends to individuals on parole or probation. And I won't cite the numbers, the statistics again, but this is, again, a very successful program in terms of bringing people into the detention and removal system. 4 million fingerprint submissions so far. Over 300,000 database matches and 64,000 but Secure Communities wouldn't be effective without this immigration detainer tool, this civil regulatory tool. Now, I want to describe just briefly some of the distortions that come with the use of this tool. There are several cases now of people who have been detained for several cases of them actually suing. There are lots of immigrants and these detainers are held for much longer than the 48 hours minus weekends and holidays that the detainer spans that it's valid for. So there's the case of Luis Quezada in the Jefferson County jail in Colorado who was arrested criminally for failure to appear in court on a traffic violation. That same day the Jefferson County jail received the immigration detainer and Mr. Quezada was being a new investigator to see if he was subject to removal and the detainer itself said we have 48 hours and despite the pronostations of his family Mr. Quezada was held for over 47 days and was finally released. Now you might say why don't people use habeas as an option to get out of when they're detaining in excess of the ICE detainer that the time a lot of them are the ICE detainer but one of the interesting things about coming from someone who has some immigration practitioners who deal with these detainer situations where people are being kept for longer periods of time she said the minute the release looks imminent the jail notifies ICE has 48 hours that person then goes into federal immigration custody from there they may be sent out of state it's a federal system transferred shifted around and makes it much harder to consult with an attorney when you're being moved around and so people tend not to file abuses now there's possibility that some of this is caused by confusion like people just don't get the criminal segment doesn't get the criminal law enforcement the local folks don't get how this civil tool is used and that may ultimately be the reason for holding them for so long but in other instances you find judges doing things like failing to grant bail for people who are under even though the state may guarantee the right to bail it judges there are judges who have had a blanket policy of denying bail to people in jail as a result of an immigration attainer being lodged bail is something we think of as part and parcel of the criminal process but there are instances of judges even denying bail on the ground that the person is going to be a flight risk in prisons we see it as well we see correctional officials denying work release programs rehabilitation programs so it affects sentencing as well this inability the operation of the civil tool of the ICE detainer in the criminal justice environment whether it be police citizen contact jails or corrections so what do we make of this? my project is really to fair it out and to learn more about the ways in which this civil regulatory power intrudes in the criminal sphere and restructures some of the ways in which criminal law enforcement is accomplished I guess one thing I think it's important to know recognizing knowledge is we have a criminal justice system that is on the verge of reform it has drug laws have been repealed I think the fact that it's just so expensive to incarcerate people now has spawned a host of reform initiatives diversionary courts harm reduction question whether when this civil power restructures even law enforcement priorities with respect to non-us citizens whether those that kind of reform trend may be studied people who study civil collateral penalties the host of them deportation is just one have really come a long way getting the ABA to promulgate standards and making these penalties more visible giving notice and so there's a trend to having these penalties be less well obviously punitive but there's a the trend is to treat them in a way that kind of recognizes the punitive nature of them and as long as we have this murky line between civil and criminal it's unclear whether people get the murkiness lastly I told you sex offenders are on the on the horizon I begin to look at other examples of where civil regulatory power comes into the criminal system and a colleague of mine checked you and just finished a book called justice perverted about civil commitment of sex offenders and the interesting thing about sex offenders is they are exiled in a sense these civil commitment laws these new civil commitment laws basically exert civil control over people who have finished their sentences so at the end of the sentence they people who cannot sex offenders who cannot prove that they are no longer dangerous may go into a lifelong civil confinement circumstance right so but even those folks are given fairly generous procedural protections a trial representation by counsel and so even in that reviled category of people there's the impulse to recognize it from what it is which is you know I think it's a wink and a nod we give them a trial because the likelihood that they're going to ever get out of the civil confinement is not great so I welcome your comments it's a project that I will continue to be working on and I thank you for your time so you made it thank you and I'll turn the microphone over to you thanks Jennifer and thank you to the school for convening this conference and inviting me to participate in it what I'm about to present to you is not an analysis of root causes and that should be clearly understood instead it's a ameliorist attempt to address the real world problem on prison overcrowding that is quite extraordinary dimensions so the first thing I want to do is to lay out the problem the second thing I want to do is to identify the legal context for you the third is to suggest some of the arguments in favor of the status quo which I'm challenging and then finally I will discuss my proposal this will be very briefly because the time is short first the prison overcrowding problem has erupted a long time ago and has continued and gotten worse in many states California being perhaps the most dramatic example of that and there are lots of reasons for this again I'm not going to discuss root causes these are sort of intermediate causes the war on drugs the war on immigration crimes a lot of high recidivism rates longer life spans for prisoners and limits on the trends are quite alarming in this respect the federal inmates have been increasing that is the bureau prison inmates have been increasing about 4% the year immigration crimes constitute about 28% of the total of that category state inmates the population state inmates may have peaked it was pretty much level in 2009 but if it peaked it peaked at a very high level the paper has a lot of statistics on the actual numbers and also some of these weaknesses of the numbers the measures of prison overcrowding that is to say the rating capacity of the institutions is a matter of some manipulation and uncertainty Vera Institute in 2006 concluded that the feds were operating at about 140% of capacity and California was and continues to be operating at more than 200% of rated capacity there are lots of ways to fudge these numbers and the incentives part of those who administer these systems are quite mixed they are under court order, they are under political pressures they want to increase their budgets so there are a variety of competing motives that might animate their sketching of the problem but the paper contains the best data that we can find prison overcrowding also creates enormous management, prison management problems which have great effects on the health and safety and the programming for inmates and those are some of the first things to go when prison authorities begin to look for savings the jail population is distinguished from state and federal prisons is growing faster than the prison population 10% of the people who are detained in jails have already been sentenced to prison so they are really holding they become a holding pen for those who are prison bound or are supposed to be prison bound the governmental responses to these crisis vary from state to state and I include in the paper a detailed case study of California's response basically California's response which is before the Supreme Court now as you probably know awaiting decision has basically been to transfer prisoners out of state which is obviously a band-aid it's a remedy with limited possibilities as other states institutions fill up with California prisoners there's been no significant release by California of incarcerated prisoners even under the pressure of the court order imminent Supreme Court decision they have devised a system of good time credits which may over time affect the population in the prison but this only reduces the prison overcrowding under the best estimates this new system will only reduce prison overcrowding in California by less than 20% the general crime rates in the United States are down as you know 51% of those in the prisons overall at the state and federal prisons are in for drug related offenses now lest you say that this is simply because the drug laws are being inappropriately applied to produce incarceration which that certainly is the case in many situations I just want to read from a recent paper by James Foreman writing of incarcerated criminals generally not just immigrant inmates who observes that considering all forms of penal institutions together more prisoners are locked up for violent offenses than for any other type even if every single drug offender were released tomorrow the United States would still have the world's largest prison system brings this to the question of the extent of incarceration of immigrants and that the statistics are difficult to come by particularly the states don't collect these figures but the estimate for the feds is about 95,000 in federal institutions in 2009 26% of the population in federal prisons are immigrants so the estimate tells us 4% in the state prisons much lower percentage and about 9% in jails but again the date on jail populations is very very scattered and unreliable ICE's estimate is that there are about 630,000 immigrants who were detained about 5 years ago that number may have dropped as illegal migration has reduced as declined over the last few years but nobody really knows so that brings us to the question of how many of these incarcerated criminal immigrants are removable and again for several reasons we don't really know the answer to that and we have a long appendix I say we have long appendix which tries to trace as much as possible both the definition of removal aliens and the crimes which have been held to be the basis for removal and the numbers ICE estimates there are something under 450,000 removable immigrants in the entire prison system federal state and local we did a lower bound estimate on this using the reimbursements from SCAT which is a federal program that reimburses states only for certain categories of undocumented incarcerated people and that indicates about 1 billion dollars 3 or 4 years ago 1 billion dollars is spent on the incarceration of removal immigrants and that was limited to only 5 or 6 states it's a very large number Terry mentioned the CAP institutional removal program I won't repeat that the bottom line is that after almost 20 years of the evolution of this program a lot of congressional pressure it remains pretty inadequate in terms of the percentage of those who are removable and incarcerated who are actually removed I should also mention that lots of immigrants who are incarcerated desperately want to be removed they want to go home for all sorts of reasons so it's not the case as one might imagine as I sort of assumed naively when I got into this project that they all want to stay in the United States as long as they can even if they're staying in American prisons so the bottom line in terms of what the problem is is that the prison overcrowding has worked into a very dangerous crisis that some decriminalization and some diversion programs are being put in place and some of them have some promising effects but the low hanging fruit has been picked and it's going to be as James Foreman suggests it's going to be harder and harder to find easy cases for reducing prison populations the point of the paper is to suggest that the earlier removal of some incarcerated removable immigrant criminals is one partial remedy for this crisis that brings me to the legal context and the legal context is actually very straightforward and somewhat puzzling there's a rule which I call in the paper the imprisonment before removal rule this is with respect to criminals who have whose convictions are final and whose deportation orders are final so these are people who've been through the entire criminal and deportation process and they have no more remedies the basic text for this legal context is section 241a4b of the immigration statute which provides that government quote may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment this provision was enacted in 1917 along with the first provisions making the crimes committed in the United States a basis for deportation and this 1917 provision was the predecessor to the one that I just mentioned at the time the rationale for this provision that is imprisonment before deportation prohibiting earlier removal after convictions and deportation orders were final had a couple of rationales the first was to assure full deterrence by ensuring that people would serve their full sentences and secondly a concern about the legal reaction of people who were deported early and then simply arrested in the United States and more offenses this 1917 provision had two protections for criminal immigrants first was the pardon authority and second was what we in the business know as JRAD which unfortunately no longer is on the books and in 1952 this provision that I've been describing was codified in 1993 Senator Venhouse representative Schumer proposed to authorize earlier deportation if doing so would be appropriate and if the alien had been adequately punished that proposal was defeated in the house and in 1996 the provision again that I mentioned 241A4B was permitted to authorize two exceptions to this imprisonment before deportation rule the first was to one exception applied for federal prisoners the other two state prisoners and the two criteria that might qualify an incarcerated immigrant for early deportation were appropriateness undefined and having committed certain nonviolent offenses now Terry's mentioned some of the congressional pressure to detain and to deport criminals that built up in the 1980s and 1990s you had the ACAD program in 1986 the institutional hearing program in the ADA IRA in 1996 the institutional approval program which was a tweaking of the IHP in 98 the CAP program which you mentioned early in this decade the last decade and a strong push to use the authority grant by 287G and an expansion of the Secure Communities Program again as Terry has already mentioned that brings me to the policy arguments in favor of the status quo and there are a number that I lay out in the paper I'm only going to mention the first is concerns about illegal re-entry the same concern that animated the authors of the 1917 provision this it seems to me the magnitude of this concern its weight in evaluating the status quo the current reforms depends a lot I think on how effective our border control is and that's changed a lot since 1917 its even changed a lot since 1996 for better and for worse the second rationale was reduce the turns obviously if you report people early before their turn it has been fully served that is a reduction in the punishment to which it is affected and to that extent will reduce the deterrence unless you can assure that they will be incarcerated in their country of origin and that brings me to the third argument in favor of the status quo which is the prisoner what are called prisoner transfer treaties this is a system of bilateral agreements with variety of countries particularly important source countries like Mexico and these treaties among other things assure that removable criminal immigrants in the United States will be accepted by the country of origin if the conditions of the treaties are met and secondly that they will be incarcerated for the rest of their sentence in the country of origin these treaties have been admired in very complex diplomatic negotiations for a very long time Mexico has been very much opposed to this as you can imagine for reasons you can easily imagine so the efficacy of the prisoner transfer treaties is not nearly as great as the words on the portrait might suggest and then the fourth argument in favor of the status quo is the existence of social ties on the part of prisoners to family and and other relationships in the United States we're very familiar with that concern it's a great concern particularly for those who have spent or have spent almost all of their lives in the United States and have very few if any ties to the country of origin so that brings me to my proposal which is to change the imprisonment before deportation rule in one of two ways the first would be to simply eliminate this requirement and leave it to officials to determine the circumstances under which and when the prisoners should be reported leaving discretion to the prison some combination of prison authorities and ICE to determine whether and when removal would occur for these folks and I'll define what I mean by these folks the second possibility would be to change the default rule so the default rule would be early deportation as soon as deportation can be effectuated after the rights of the individual have been determined finally by the courts so that that would be the default rule, it wouldn't be mandatory but it would be the standard way of dealing with this population and of course it would be subject to overriding as default rules are the second part of the proposal is to have legal standards that would guide and constrain discretion exercised by these officials and I developed a set of individual and community values that would be taken into account in making these determinations as to which individuals will be suitable for early deportation and here I'm reading from the paper individual values should include maintaining the integrity of families in the United States especially those with children or spouses who are US citizens the immigrants desire to be deported and other humanitarian factors such as medical treatment community values should include the seriousness of the offense the violence and harm to the community weighing heavily in favor of early deportation the risk of recidivism the degree of prison overcrowding the length of time remaining in the sentence and thus the incarceration cost the receiving country's ability to ensure that he completes the sentence there the likelihood of his reentering the United States illegally after that country releases him legitimate diplomatic considerations and assurances that those who are incarcerated abroad would be incarcerated under conditions that meet US standards this might include building with the approval of the other country building and operating prisons in those countries and I have an appendix to the paper which describes the history of proposals to do that so far unsuccessful the third part of the proposal would be that a process for making these determinations the decision maker who would apply these criteria would provide a written summary of findings with respect to each of these criteria as applied to the particular prisoner under these criteria and then there would be an opportunity to the prisoner to contribute the findings that were made by the decision makers who proposed to move him but it would be a summary process and would be without judicial review and I have a section in the paper which I explain why that summary procedure would be discussed upon and then finally it would be necessary to renovate the prisoner transfer treaty regime to assure both the incarceration of those who are deported early and the humane conditions of which they would be retained so that's the basic idea I have very extensive appendices which I think whether you agree with it or not would be a very useful compilation of data on the number of immigrants who were incarcerated the calculation the calculation method for determining how many of those are removable the cost of building prisons abroad the cost of incarceration the efficacy or inefficacy of the variety of programs including some of the ones that I mentioned and also the experience of the states five leading states New York, Texas California, Florida with respect to invoking the exceptions to the statute that I mentioned which provide for early deportation in the case of non-violent criminals there's also appendices there which I think is very interesting discussions that we'll shortly ensue here about how we distinguish serious from non-serious drug offenses we all speak very casually about that particularly when we're discussing what changes in the system want to be made in order to reduce the incarceration of people who want not to be in prison it turns out that the most really involved experts in this field in the drug offenses business are really unable to draw a very clear line apart because of the nature of the criminal justice system of which people are often convicted of one thing and end up serving sentences for another and for many other reasons so those of you who believe as I do that there are drug offenses that ought not to result in incarceration in the first place really need to grapple with this definitional problem which is end data problem resulting in data problem which are quite complex and it turns out again the data presented in the appendices turns out that the number of people who are defining non serious as well as we can given these the number of people who are actually in prison for mere possession for consumption and certain other possession plus crimes is really quite low compared with the population of drug offenses generally it's not a lot of people compared to the full population of those who are incarcerated for drug related offenses it's tragic and unnecessary perhaps for those people but we're not talking about a major the decriminalization of those sorts of offenses is not going to have much of an impact on prison populations and their point of problem prison overcrowded thank you so we have about half an hour left and I think what I'll do is I'll ask the questions about the fear and then I will let them talk to each other for a moment and then open this up for all of you my first question is from here begins with a kind of a practical informational question and then and then a possible follow-up you talk about as part of the proposal you're doing and effective later we release here but a lot of this relies on having the receiving country continue the sentence is that right so in all cases you would envision that receiving country would continue the sentence in some form or another are there concerns that that you do you need harmony between the legal regimes between the sending country receiving country are there concerns that you obviously criminalize a lot of behavior and activities that many other don't know why so what what are the implications in that regard is there a possibility that we're going to be expanding to a hyper criminalization to certain extent to other countries what are the what are the kind of practical implications of that well that's a good question and it's addressed directly in the prisoner transfer trees which have decision rules for situations in which the sanction for particular threats is different in the in the central and you seem to transfer or on transferring countries and as I understand it it's not so obvious as it might seem from the concerns about prison overcrowding and hyper criminalization in the United States that the sentences for lots of the offenses are not equally or greater equal or greater than in the United States for number of different kinds of offenses but but you're right that the possibility of differential sentencing and legal regimes is one that has to be addressed in the trees and it is addressed but the tree is for other reasons as some of which I mentioned to you have not consulted in many early deportations my question for Terry is a little bit designed to kind of get you the two of your papers in dialogue and one of the things that you talk about is this kind of the criminal and immigrant convergence and the use of civil mechanisms you talked about as a means of bolstering in some sense criminal force or criminal processes and at the same time undermining potentially criminal procedural protections that would otherwise apply in a criminal context and I guess I just wanted to get your reaction as you read and listened to Peter's paper do you see this as an example of this convergence? Does that give you a basis for a particular proposal or do you see this proposal differently? So let me say very interesting about this paper I don't really enjoy it but the back part about it is I like parts of it really I do that's not a problem so what is the prisoners you know and you talk about sort of heartfelt concern that I remember being in a shock facility a boot camp in the part of New York Pennsylvania I was a 20 year old kid and I said why shock because the standards have slipped a little bit but basically if you're not a violent felon and your first or second offense and you're under third you can dispense with a three to five sentence in a year and a half or six months in a year and a half and we hurled and said you're not what would ever why shock and he said because I want to go home and if I have to carry logs and put my lunch in my pockets I would do that and sort of stood up with the paramilitary regime of shock camp so I get that and it does also at the same time kind of resonate with this idea of civil power coming in operating within the criminal system and particularly the fractional system and so I guess where I would start answering your question Jennifer is Peter you talk about deterrence and concern about whether letting people re-release for deportation will change the deterrence picture of crime but have you given up on rehabilitation I'm curious as to whether you see what's happening in prisons if there's any positive project so that people would benefit from state and then so one of the things that struck me is the low numbers of state the low percentage of people in the state prison population because what seems to be happening just a snapshot as you said state prison growth is a lot all the growth is in the fetus but even so New York has an aggressive prison downsizing program repeal the Rockefeller drug there's a lot that's going on in the northeast and in the west but in states to downsize the prison population largely because there's a huge controversy right now about prison prisons because the prison guards says no and I suspect that one of the reasons why the elimination the proposal to eliminate the 241A4B requirement fell on deaf congressional ears is that it's big business and that part of what's happening is it's immigration detention that's driving prison growth and the immigration detention system all but saved we did save the private prison industry because it's about in the middle of 2000-2001 for the first time state prison growth as opposed to sort of exponentially growing dropped it didn't level but it dropped for the first time like a stretch of 20 years so I'm wondering if you know how you feel about that A. about what is their positive project in prisons just because someone's a violent felon doesn't mean that they don't at some point they won't have a criminal menopause because I talked to a lot of 40-year-old Max's three innings and and they definitely talked about full time but then the other thing was just the economics driving the growth those are two very good points the first of which is about rehabilitation and criminal menopause as you know as well established by criminologists criminality tends to level out at a particular age the rates of crime committed by people in their 40s and above much lower this is even true with regard to many drug offenders or heroin offenders nobody quite understands why that is but they do sort of age out of crime in terms of rehabilitation you know I wish I could be more optimistic about it but I can't because I've read the data and the data are very very clear have been for almost 40 years that rehabilitation in prisons is very episodic and by and large doesn't work now they're good ideas out there and no doubt programs can be better administered and this is not written in stone but it is very clear from the studies very clear it has been since the mid 70s when Martinsen published his study and it's been replicated and there's very little good news there very little except with regard to some low level drug crimes the Rachel Barkow has written a paper which I just read and she did a workshop and she summarizes and Rachel is a certified liberal and somebody who will find optimistic data wherever she can find it it means that we can have a hope for rehabilitation of criminals in prison and she leads a very very dismal inclusion role so I know I don't have much hope for that but again it's quite possible that we can do things better or that there are ideas out there that have not been tried but I doubt that there are many ideas good ideas out there that have not been tried after all the stakes in finding the solutions to this problem are immense and a lot of money has been invested in efforts to find it and to administer it and they just come up with almost all dry holes in terms of the economics I agree with you I would take this step forward you refer to prison growth as having become a big business and it is a big business it's not just the corrections corporation of America in terms of the politics of the situation the greatest source of resistance to reducing the prison population is unionized prison guards and that's mostly in the public public who run systems so it's not just the private sector the public sector is if anything more resistant to this change which is why California and other states are having such an incredibly difficult time negotiating the politics of reducing prison overcrowding and again it's quite remarkable if you read the oral argument in the Supreme Court decision that Schwarzenegger versus Gonzales is California its position was we really tried very hard we don't have any new ideas we are going to transfer a lot of prisoners out of state but as I said the data indicate that those transfers would be under 20% of the number of prisoners that California has to have to reduce its prison population from in order to meet the Supreme Court order but my guess is that the court and Dean Kerwin is not here anymore he would probably have a better idea but my guess is that the court is going to kind of finesse the problem and say well you know come up with another plan and give you a couple more years to try to hold the state's feet to the fire but the state doesn't have any really good ideas for doing this except perhaps for releasing prisoners who they consider dangerous and of course they don't want to do that for obvious reasons and also for political reasons because all it takes is one Willie Horton to produce a Willie Horton incident and that's the last in the world that they're willing to I could go on for hours asking questions but I won't because I know there are lots of people who would like to ask them so I'll start with Frank and then Christina Peter probably in the paper could you give us some idea of the relative size of these two different possibilities you talk about one is even applying conservative definitions to release incarcerated criminally convicted immigrants on the one hand your proposal and on the other hand those who are convicted of the minor drug possession so it's a crime I realize it's hard to it's actually impossible in terms of the latter the low level drug defenders and again I'm begging you a question a difficult question saying low level drug defenders but they appear to be in California I think it's on the population of the prison population that's in for for possession basically possession plus some other relatively minor acts I'm not talking about possession we intend to sell that's in a different category I'll compare what it is this one we intend to enjoy very small in terms of the number who might be reported early under this proposal it's really impossible to say first of all there are a number of conditions that would have to be met which are not easily met including the prisoner transfer treaties being renegotiated one of the features of the prisoner transfer treaties is that the prisoner's consent is required if you will probably disagree my own view is that there's no legal requirements for prisoner consent other than the treaties themselves there's no international law requirement there's no constitutional law requirement these are people whose affordability has already been determined and their criminal convictions have been affirmed so that is probably a big impediment to the early removal of a large number of prisoners but I have absolutely no idea how many would I've done the best I can the data's all there but the imponderables in terms of what conditions would have to be met in order for this to be implemented make it impossible to predict so Terry I wanted to ask you if you could say a little bit about what you had planned to say about Padilla that you didn't have a plan to say so maybe it's not a more directed question than that except that listening to Peter's I'll mention my name with this paper sort of makes that to be a question prominent that is I think if your proposal were to be Peter implemented in the ideal form I'm not sure that would be ideal form it might ultimately render removal of the punishment at which point I wonder if procedural protections would kick in or is that not the ultimate play for the proposal so I guess Terry on Padilla and then Peter removal would not be any more punishment than it is under existing law again these are people whose legibility has already been established and appealed and affirmed so the legal regime would go to all familiar in which deportations would continue now I've criticized that provision for a very long time and probably most people in this room are discriminated as well but that is clearly legal I did understand that it feels to me like Padilla is a move in the direction of recognizing that there is a not only punitive but straight up criminal punishment quality to removal and so the question in part is what is the direction of this proposal but I see a good distinction and I think that was part of why I asked him about the necessity of having a criminal sentence for him if you didn't have that requirement then you were on the possibility that you're treating a removal of the punishment and that might have constitutional implications as well I was with you on the essentially the Supreme Court recognizing that removal really began to look like a direct consequence of criminal punishment and therefore expanded essentially expanded where I was going to go into Padilla had to do with the something Peter mentioned earlier the JRAP civil remedy when Congress took it away it took it away at a point at which the anti-jug abuse act had already been passed right the JRAP was repealed in 1990 so it's sort of an example of where it's not so much a law enforcement example of the civil but it's an example of where this legislating the civil realm has a huge impact on what judges consider to be a direct consequence because what happened after the JRAP the judicial deportation is that in 1996 the even greater proliferation of ag felonies that then became the Supreme Court the majority recognized that now it's a direct consequence that it's very hard to untie the deportation of civil penalty from what's going on the criminal so that's all but I'm with you on looking at I mean I think that's why you really have to be careful to kind of craft something so the deportation doesn't become I'm a public defender so I'm familiar with Padilla what it does I think for us is yes it makes us aware that this is a consequence of criminal conviction and we can advise our clients that look by pleading to this you could be deported or you will be deported or maybe we can try to ameliorate by making it a straight possession and 365 four days instead of a year things like that is not an aggravated felony but what I thought was really interesting is is there any other advocate other than you for like you said jeez there's no habeas corpus on these these people who are held you know whether they finish their crime or they have it you know but now they're kind of held in this leeway a little okay let's say a police officer is has an incentive now to arrest this guy for drinking in public because he suspects he's illegal and so now this person is held who's going to represent him and there's no appointed counsel for him because once he goes off into immigration land it's simple and so he's poor no one's going to file a habeas for him there's no law firm that's going to hire you know that's going to represent him because he doesn't have any money so those people really are without counsel they are the government's able to get away with it I mean there's nobody advocating for them so it's a really important issue I think that you're taking on because there is no other voice or is there I mean is there some other advocate youth for those people family members but even they who's going to file a habeas maybe the law school for Peter I'm just wondering how far you might be unwilling to extend the lodging for what you're saying because when you're talking that sounds a lot like arguments for offshoring of other types of functions that are too expensive for private public institutions to do so why send back to the receiving country why not send it to any country that has a comparative advantage in housing in in imprisoning people why go back I mean especially if you're talking about people who were children when they came as immigrants to this country they didn't make a difference sending them to their home what do you think of course there's a short answer to the question the short answer is that under international law nationality that's where a person has a right to be repatriated that's the country that is legally supposed to you know home is where they have to take you in of course they don't do that in many cases but as a legal matter that's a very clear rule the other thing is that the there are we shouldn't be we shouldn't be distracted by the fact that there are some cases in many cases in which the person has no relationship to speak up with the home country to more the fact that for a very large number nobody knows what the percentage of a very large number there is a relationship they have family there they have relatives there they may have grown up there so it seems pretty obvious that that ought to be that ought to be the very first resort and under the statute under the immigration statute the country of nationality will accept the person which is the self of violation of international law then there are a variety of other possibilities that are enumerated in the statute but I don't see any justification we're simply sending a person to any place that's slowly taken and had a low cost incarceration it's certainly not the logic so Peter I like the proposal but I think it's missing something I don't think that you have not having read the people in terms of your comments made it clear why it is in the interest of the country quite apart from the obligations that they have to deal with what is the alignment of insane people other than the heavy hand of the U.S. as a super home to take the people and the reason that this is an important question is just speaking from experience when the U.S. has deported persons to Jamaica who are relatively low level criminals here when they get to a country without infrastructure to properly finish the incarceration and monitor them exposed they end up becoming criminal big groups and certainly that has been the Jamaica experience and sometimes there's a spillover effect so it ends up costing U.S. more than if they are not coming to process I'm speaking a little bit abstractly but I mean I could be more concrete but if you were to say to the country of origin this is what is in it for you and finally we are aligning the incentives that you would mitigate that problem and I haven't is there some upside that we cannot it's in the paper and it's a hard problem but I think the United States ought to subsidize incarceration of the law in order to both induce the country to accept people who has a legal obligation to accept and also to improve the quality of the conditions in those places when the dependency shows the U.S. could do that and still save a great deal of money per the gap between incarceration costs in the United States which in New York is about $55,000 a year in Montana it's only $11,000 and then there's a rate of states in between and the cost of incarceration in Mexico so much lower that we could subsidize those prisons to the quality of the conditions and still save money and still reduce personal overcrowding in the United States but to induce them to do this is harder than I'm suggesting in part because of the diplomatic diplomatic resistance on part of Mexico to acknowledging this problem they don't want these people back and they resent the United States trying to buy their assistance with money diplomatic is a very hard problem but I don't think it works maybe I didn't quite get into the problem but why do they care if the person gets out I mean why would a why? why do they care if the person gets out that's what I'm not quite figuring out I can see why they might be financial relief it's the thinking but what is in it if you perform x-goal you get to this number of visas why do they care if the person doesn't am I are you asking what would induce them to keep them in jail once they're repatriated? yes to follow it all the way through that would be part of the deal we'd have to monitor just very briefly one comment and one question for Terry the comment is just that it's not about the relationship through immigration and criminal law but this panel in particular to me underscores the incredible value of having the criminal law scholarship and research conversation be part of the immigration conversation because even if we were able to imagine a quite different world a quite different setup that treats the connection between immigration law and criminal law very differently getting there is going to take a lot of thinking even if we get there much of what happens in immigration involves questions of detention and questions of deterrence and that whole rhetoric is just part of immigration so we'll have to struggle with that I think that would be my question is this and it goes back to your critique of the criminal alien program and I think it's also true to some degree about secure communities so some portion of the people who are concerned about it I think it's fair to say are people who are picked up through the criminal alien program have been convicted and they are removed maybe because they're out of stands and I think one version of their critique would be this whole operation is based on the premise that we're targeting people who are criminals how can they be criminals if they're not convicted yet they're being removed and even if Padilla in that line of cases does not provide a remedy it's still a concern that in some sense there's a mismatch between explaining itself to the public but here's a flipside that I want to have you wrestle with a little bit and that is of course for better or worse the way Congress has set up the immigration laws all these people are removal to begin with at least some of the people were being picked up and it would be strange to say that because they've been charged with a misdemeanor for example and suddenly they're less removable than some would have been if they hadn't been so charged so the question is how much is your critique about the discretion that ICE uses and how ambitious are you in controlling that discretion? I'm going to think about that and talk to you after that I wanted to give I still see at least three hands up but we're at time right so I wanted to give each of our panelists a moment to make perhaps one final comment and then we'll close Thank you Peter again, thank you for a very provocative paper that ties in nicely with some of the things I'm thinking about I guess my last comment has to do with I guess I'm wondering whether your proposal I think I'm trying to figure out what is my discomfort and I think in part ultimately your eye is on the line don't fight it your eye is on the line in the same way that what we're not paying attention to are two things and this goes back to what we were just saying we're presuming that all prisoners are dangerous and that's an assumption that's ICE may and when you talk about violent violence there are people who are violent there are people involved in violent felonies because of drugs there are people that are involved in violent felonies because of crimes of passion I don't think we can presume that just because they're convicted of violent felony that they remain dangerous and then part of me wants to say maybe I'm not holding California speed to the fire because in some ways isn't California creating its own problems I understand I hear when you say that California has a virgin prison population there's a higher percentage of non-US citizens in California's prison population than in New York's New York is closed in prisons yes it costs $55,000 a year but New York is closed in prisons because they're just not enough people and we figured out some ways to do something a little bit better with dealing with low level offenders and even dealing with violent felons so I guess I wonder if your proposal doesn't to some extent acquiesce in the problem that has been created with the industry of incarceration of the perpetrators okay, first of all I don't assume that all prisoners are dangerous not at all and there's nothing I couldn't agree with you more in the respect of that secondly and and Bager is one of the criteria that would be obviously be applied I'm required to be considered in connection with this early removal option in terms of New York closing prisons as I understand it I don't believe that it's expected that it's going to significantly reduce the prison population it could be wrong about that but that's my understanding