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Prosecuting Migrants Is An Indefensible Failure

“The criminalization experiment, started by President Bush and exacerbated by President Obama, has proven an abysmal failure. We prosecute immigrants who seek family reunification or refuge from persecution.”
13 Jul 2016 – 01:02 PM EDT
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Immigration detainees stand behind bars at the Immigration and Customs Enforcement (ICE), detention facility in Florence, Arizona Crédito: John Moore/Getty Images

Roughly 35 years ago mass incarceration was born in the United States. It began with draconian drug laws which disproportionately targeted the poor and communities of color. It then spread to other social ills, like mental illness and homelessness, which -- like drug addiction -- were punished rather than treated.

As the U.S. has become the prison capital of the world, many now recognize that mass incarceration is a moral failure. In 2014, 30 states passed laws aimed to reduce their prison populations. In November of last year, 6,000 drug offenders were released early from federal prison because of a retroactive reduction in drug sentences. An additional 8,550 individuals could be eligible for release this November.

Yet while bipartisan support to end mass incarceration has grown, the drive to criminalize and incarcerate immigrants has intensified. A new book released today by Grassroots Leadership and Justice Strategies, “ Indefensible: A Decade of Mass Incarceration of Migrants Prosecuted for Crossing the Border,” demonstrates the inhumanity, futility, and exorbitant costs of criminalizing immigration.

For decades, immigration violations, including being present in the United States without legal documentation, were typically treated as civil offenses and governed by immigration courts and administrative code. In fact, until 1964 much of the migration prosecuted today was legal under the Bracero Program, a guest worker program initiated to allow Mexicans to migrate to fill the WWII labor shortage.

Termination of the Bracero Program converted what had been a deeply entrenched pattern of annual migration into the “problem” of improper entry. Even after the program was ended and migration networks continued to operate on a clandestine basis, the United States had little incentive to prosecute and incarcerate immigrants who would be ordered to leave the country. Prosecuting immigrants who sought a better life for their families was seen to have little moral or deterrent value.

But in 2005, the Bush administration abandoned this precedent by adopting a zero tolerance program towards unauthorized migrants at United States’ Southern border. Operation Streamline mandated that individuals crossing the border without legal papers be arrested, imprisoned, and prosecuted for the federal misdemeanor of improper entry, which carries a sentence of zero to six months. Under the program, as many as 80 shackled immigrants are arraigned, convicted and sentenced without due process in an assembly-line judicial proceeding. Operation Streamline, however, is just the beginning.

At the same time federal officials undertook a dramatic increase in felony prosecutions of migrants who returned to the U.S. after deportation. In these cases, a migrant undergoes a more individualized process, but if convicted of re-entry, they can face up to two years in prison. And that sentence may be increased with additional sentencing “enhancements” for any prior criminal record that can result in many more years behind bars. The fact that so many return despite the prospect of a lengthy criminal sentence demonstrates that the threat of prosecution and imprisonment ebbs away in the face of economic need and the desire for family reunification.

Since the inception of Operation Streamline, nearly 750,000 immigrants have been prosecuted for improper migration, with prosecutions peaking in 2013. As of last year, these status offenses accounted for roughly 49% of all federal prosecutions nationwide. Today roughly 15,000 immigrants languish in federal prison for improper entry or re-entry.

Criminalizing migration is a moral failure. Many of the immigrants with whom we spoke call the United States home. Take the case of a man we met known only as Eduardo Jose Garza. Garza had been in the U.S. for 14 years, when he was picked up by local police in 2014 for driving without a license. Even though his wife and three children were waiting for him in McAllen, Texas, Garza pled guilty to improper entry to avoid a lengthy criminal proceeding. He was sentenced to six months in prison, and then deported to Mexico.

Garza’s wife was pregnant when he was picked up, and she relied on his salary to sustain the family. If her landlord had not agreed to postpone her rent payments until Garza returned, she and her children would have been homeless. Garza later re-crossed the border to reunite with his family, but he leaves the house only when necessary.

The institution of the family is a core American value and should be celebrated not criminalized. Immigrants like Garza who’ve settled in the United States and built a life with their families shouldn’t be prosecuted for improper entry or re-entry. Nor should other immigrants who are trying to reunite with their families or find work to support them. Instead they should be recognized as valued members of their communities and given a pathway to citizenship.

There is evidence that immigrants with meritorious asylum claims are being prosecuted as well. A report released by the Inspector General of the Department of Homeland Security in May 2015 found that immigrants who have a legitimate fear of persecution in their home country are often prosecuted, convicted, and sent home where they face imminent harm, a potential violation of the 1967 Protocol to the International Refugee Convention.

Criminalizing migration is also ineffective. Although the stated intention of “Operation Streamline” is to deter migration through the threat of conviction and incarceration, the government has failed to demonstrate a successful deterrent effect.

Most of the judges and defense attorneys with whom we spoke say that economic circumstances and family ties have a much stronger influence on immigrant behavior than criminal courts and prosecution. Judge Felix Recio, a retired magistrate judge in Brownsville, put it bluntly: “These prosecutions have no deterrent effect whatsoever. People will just continue crossing. We share culture, religion, food, families, music. How are we going to stop that?”

Immigrants who’ve faced prosecution agree too. Each person we interviewed came back at least once after being prosecuted and deported. For one woman we met known only as Gladys Monteverde, a sexual assault survivor who fled abuse in Mexico, returning to her family in the U.S. was her only option. “I was so scared because I have nobody in Mexico,” she said. “So as soon as I got there I called my mom and my family [in the U.S.]... I just wanted to go home.”

Prosecuting immigrants is likewise costly. We estimate that the U.S. has spent $7 billion incarcerating immigrants for migration offenses over the last decade, lining the coffers of private prison corporations. These prisons are ripe with abuse and inmates have repeatedly complained of egregious health care and inadequate safety. There’s also the enormous drain on prosecutorial and court resources, funds that could be redirected to bank fraud and public corruption cases.

The criminalization experiment, started by President Bush and exacerbated by President Obama, has proven an abysmal failure. We prosecute immigrants who seek family reunification or refuge from persecution. We subject them to inhumane judicial processes and sentencing guidelines. And we force those who remain to live under constant fear of prosecution and incarceration.

The movement to end mass incarceration must not leave migrants behind. The U.S. government should de-prioritize these inhumane and wasteful criminalization programs, and lay the foundation to end improper entry and re-entry prosecutions.

Bethany Carson is an immigration researcher and organizer at Grassroots Leadership.
Judith A. Greene is a criminal justice policy analyst, and Director and co-founder of Justice Strategies.
Arjun Singh Sethi is a writer, lawyer, and Adjunct Professor of Law at Georgetown University Law Center & Vanderbilt University Law School.

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