Basic Immigration Facts

You'd think a famous law scholar writing about immigration would have a basic knowledge of the American immigration system, but yet Gary Becker manages to write this naive response to the idea of giving illegal immigrants jail sentences:

2) Most Americans do not wish to give significant jail sentences to illegal aliens whose only crime is that they want to come to this country, usually seeking higher wages and better working conditions than they have had. Yet in the absence of such punishment, immigrants will continue to flow across the border, pulled by earnings that are 5-10 times higher than what they could earn in Mexico and most other Latin American nations. So the only effective way to deter illegal immigration is not politically feasible, and is not attractive on moral grounds.

The fact is that illegal immigrants are given jail sentences when they're caught by Immigration and Customs Enforcement. Technically they're in non-punitive civil detention -- but they're in the same jails, recieving the same treatment, as the thieves and murderers. And because ICE's deportation proceedings move at a glacial pace, the effective sentence can last years. What's more, HR4437 -- which sailed through the House and looks poised to pass the Senate with nary a peep from the Other Republicans* -- would add actual criminal sentences for some forms of illegal immigration. So Becker's notion that Americans wouldn't be able to stomach harsh penalties for illegal immigrants is in total opposition to this country's xenophobic tradition and practice.

I must also disagree with Becker about the likelihood that harsh penalties would be an effective deterrent:
1) The factors that motivate immigration are so strong that adding a few more years of jail time for anyone who gets caught is unlikely to change many minds.
2) Most people in other countries know next to nothing about American immigration law. Just ask yourself if you know what the consequences would be if, say, you were caught illegally in Ireland, or New Zealand, or South Africa. You have no idea, right? There's just a general understanding that if you get caught without proper documentation you'll be punished and/or sent home. So unless the US plans a massive public education outreach throughout the third world, putting more jailtime in the lawbooks won't affect anyone's decision to overstay their visa or swim the Rio Grande.
3) At present, enforcement is not nearly sure enough, particularly those who entered legally but stayed illegally. This may come as a shock to the "law and economics" folks, but the human brain is not a rational Expected Utility calculator. If the chance of punishment is small enough, it doesn't matter how harsh it is. You can't take care of the people you don't catch by cracking down harder on the few that you do catch.
4) About half of illegal immigrants are not swimming the Rio Grande. They enter the US legally, but then fail to leave when their visas expire**. Increasing the penalties for illegal immigration would if anything encourage these people to stay -- it becomes too much of a risk to draw ICE's attention by trying to rectify your status or leave the country.

(Huge thanks to crankyliberal -- this post is almost entirely distilled from things she's told me.)

*The party formerly known as Democrats
**We need to tattoo those sentences to the foreheads of everyone pontifficating about immigration -- there's no way we can address this issue if we don't even understand the population we're dealing with.