Repatriation treaties permit noncitizens 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. This is not because people want to stay in American prisons. 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 doctrine, legislative history, statistics, and prison policies, I argue that prison officials’ reluctance to repatriate prisoners stems from 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, resistance to repatriation 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.
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