On October 25, 2006, California Judge Richard Oberholzer sentenced Jose Richard Leiva, 24, for the 2006 molestation of a 13 year old girl. Leiva had been convicted at jury trial of three counts of child molestation.  At the time he committed these offenses, he was on misdemeanor probation for unlawful sexual intercourse with a 14 year old girl, which occurred less than 9 months earlier.

The Probation Department recommended a sentence of ten years.  But Oberholzer imposed three years, the minimum possible prison sentence. He announced he was giving the defendant a more lenient sentence because he is an illegal alien. [Sentence for illegal immigrant questioned|Punishment doesn't fit the severity of the crime, district attorney says, BY JESSICA LOGAN, Bakersfield Californian, Dec 14 2006]

Judge Oberholzer claimed that he didn't want the taxpayers to have to pay for a lengthier incarceration and that the defendant would be deported sooner if he was given a shorter sentence. (Ironically, the defendant had been offered the shorter sentence but elected for an expensive trial, so Judge Oberholzer was in reality encouraging defendants to gamble on acquittal at taxpayer expense).

Unfortunately, this isn't a joke.

The judge is right about relative costs...sort of. Incarcerating an inmate in Federal prison costs about $23,200/year. So deportation might look like a comparative bargain, even factoring in the cost of DHS lawyers, detention space, and of transporting criminal aliens to their home country.

Hizzoner may also know that criminal alien deportations have increased—from a very small base—since passage of the Illegal Immigration Reform and Immigrant Responsibility Act in 1996. That law reduced the length of sentence time for crimes deemed deportable from five years to one year and also eliminated nearly all grounds for appeal, making deportations virtually automatic. And IIRAIRA was retroactive, making immigrants deportable for crimes that did not warrant deportation at the time they were committed.

In the mid-1990s about 33,000 criminal aliens were deported annually. By 2005, despite a decade of falling national crime rates, criminal deportations had grown nearly three-fold, to 90,000. (Table 1.)  There were criminal deportations in the past, but the number in 2005 alone exceeded the total between 1905 and 1986.

Perspective check: there are 10-20 million illegals in the U.S.

Problem: Judge Oberholzer presumably assumes, like many people, that the number of deportations reflects the number of people who are deported.

Wrong! The statistics double- (or triple-, or [fill in-a-number]-) count repeat deportees. Thus they are a measure of deportation "events" rather than permanently deported individuals.

Needless to say, the Federal government is clueless (as usual) about the exact magnitude of the deportation over-count. But it could be quite large.

In Mexico, for example, criminal deportees regularly remain in border towns where U.S. immigration agents drop them off by bus. There they await their chance to slip back into the United States, where "sanctuary policies" often prohibit police from reporting them to immigration authorities.

Many stay here decades after receiving their deportation orders. Nationally an estimated 80,000 to 100,000 illegal immigrants who have been convicted of serious crimes still walk the streets. Some of them have already been deported and returned.

But statistics can't convey the horrific downside to such recidivism. Michelle Malkin made this point five years ago. In her book Invasion she summarized the story of Angel Resendiz, the "Railway Killer," a Mexican who repeatedly entered the U.S. illegally over a 25 year period, had at least 25 encounters with U.S. law enforcement, was deported three times and "voluntarily returned" at least four times. Between 1997 and 1999 Resendiz is known to have who murdered at least 12 Americans–the last four after being released by the INS, although there were already warrants outstanding for his arrest. (Resendiz liked to fracture his women victims' skulls and rape them as they died—a deportable crime even pre-IIRAIRA.)

BTW: Mexico was home to 77 percent of the criminals deported from the U.S. in 2005. [Dept. of Homeland Security, 2005 Yearbook of Immigration Statistics, November 2006. PDF]

The pro-immigration lobby blunted the impact of IIRAIRA with a blitzkrieg of legal exceptions. Even violent gang members were given byes, as described in report by the non-partisan Migration Policy Institute:

"With the passage of the Nicaraguan Adjustment and Central American Relief Act (NACARA) in 1997, Nicaraguans were offered an opportunity to adjust their status to LPR [Legal Permanent Resident], and certain Guatemalans and Salvadorans became eligible to have their cases reviewed under pre-IIRAIRA standards, which only required seven years of presence in the country and demonstration of hardship to the individual."

"Although a byproduct of changing immigration policies during the 1990s, deportations have played a key role in the growth of transnational gangs. As a law enforcement strategy, incarceration and subsequent deportation have not succeeded in permanently removing a gang population that, although foreign born, has been essentially US raised. [National Policies and the Rise of Transnational Gangs by Mary Helen Johnson Migration Policy Institute April 1, 2006]

And, as if these unanticipated consequences weren't enough:

 "Further, these policies have exported a violent population to some of the most vulnerable communities in Central America. Rather than curbing the threat gangs pose, deportations have helped members establish, reinforce, and expand ties across Central America and the United States."

Yes, Judge Oberholzer, deportations look cheaper…..but sometimes you get what you pay for.

Edwin S. Rubenstein (email him) is President of ESR Research Economic Consultants in Indianapolis.