24 October 2006

This is no way to treat our 51st state.

Wall Street Journal legal blogger Peter Lattman notes an unusual case wherein a convicted sex offender was allowed to avoid a one year prison sentence for his offense (which was committed in the United States), in exchange for his agreement not to return to the U.S. for three years. The offender is an American citizen married to a Canadian citizen and he maintains a home in Canada.

This "quite creative"alternative sentence, barring an American citizen from returning to American soil, is unprecedented and probably unenforceable:
"The real issue is whether it's legal or not," [immigration lawyer Robert] Kolken said from his home yesterday. "It's unheard of to bar a U.S. citizen from his country," Kolken said, wondering if it could be enforced.

Complicating the unusual plea bargain deal is Canada's potential response.

According to Citizen and Immigration spokesperson Edison Stewart, "Someone convicted of a serious offence would normally be barred from Canada. But every case must be examined as to the exact nature of the foreign conviction and its equivalency in Canadian law before a final determination is made by CBSA (Canadian Border Services Agency).

Canadian Border Services spokesperson Jean D'Amelio-Swyer told the Star she was not aware of Canadian pre-approval for the deal.

Lattman posed a few open questions about the case including the tongue-in-cheek "Would you rather spend a three years in Canada or one year in jail?" Regardless the outcome of the American and Canadian inquiries in this particular case, however, there are some larger issues to be considered.

If, in lieu of imprisoning our criminal offenders, we contrive to "exile" them to other countries, we are merely shifting the costs of imprisonment and risk of reoffense to the inhabitants of those countries; even if we somehow have a legal basis to do so, when a person commits a crime in the U.S., it is properly our responsibility to deal with that offender and, similarly, to live with the consequences of his acts and our responses thereto.

One function of imprisonment is to incapacitate the prisoner for some period of time -- a person who's sent away for some offense is not going to reoffend (against society, at least) until he is released. In this case, a criminal is allowed his freedom -- and freedom to reoffend -- so long as it's enjoyed anywhere but here. Essentially, an American judge has recklessly endangered Canadian citizens with only the most tenuous connection to an American whose crime was committed in the United States. Merely being the spouse of a Canadian citizen, what is this sex offender to his neighbors in Ontario -- a criminal-in-law?

Dumping one's trash in others' yards doesn't work on the neighborhood level; why then should we expect it to fly on the national level?

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