Illegal border crossings reached their highest point in over a decade this year, but the numbers have declined every month since May. How much of this recent drop can we attribute to the administration’s border security program?
One useful chart of the administration’s policies superimposed on the number of illegal border crossings shows no discernible relationship between the two. But one policy that the judiciary has not struck down—the “zero tolerance” policy—has almost certainly failed to deter illegal immigration. Worse still, it may have also weakened national security and public safety.
In the past, prosecutors had some discretion in deciding which immigration cases they would devote their scarce time and resources to prosecuting. Most did not prioritize low-level illegal entry cases unless the individual had a serious criminal history.
Though this prosecutorial discretion might strike some as a failure to hold lawbreakers accountable, in reality, civil penalties are more than sufficient to deter illegal entry. An immigrant apprehended after illegally crossing the border will likely face deportation, a fine, and a bar from future attempts at legal migration. For people who have uprooted their families and traveled hundreds of miles through foreign terrain to escape the murderous hellscapes of their home countries, being sent back is likely the strongest deterrent we could offer. A few months in jail on top of that will not likely change the calculus. And in fact, multiple studies, including a review from the Department of Homeland Security, show no deterrent effect from criminal prosecutions for entry-related offenses.
Yet soon after President Donald Trump took office, then-Attorney General Jeff Sessions implemented a zero-tolerance policy, which mandated that federal prosecutors pursue criminal cases for all immigration offenses brought to them.
Protecting national security and public safety means allowing law enforcement to focus its finite resources on those who threaten it most. By requiring prosecutors to bring criminal charges in cases that could otherwise be funneled through the administrative deportation apparatus, the administration has not only failed to deter illegal immigration, it has also diverted precious resources away from more pressing security threats. Indeed, as illegal-entry case prosecutions have surged to a number higher than that of any year for the past two decades, drug-trafficking prosecutions have plummeted. Large-scale human-smuggling cases launched by Immigration and Customs Enforcement’s investigative arm also dropped almost 60 percent during the first fiscal year of Trump’s presidency. Similar trends appear in prosecutions of other federal crimes.
This does not mean that prosecutors should never pursue illegal entry or reentry cases. Where an individual has a record of being a dangerous criminal, prosecutors should pursue those cases through the criminal justice system. But local prosecutors, not distant bureaucrats in Washington, should be making those decisions. In fact, prosecutors resent the strain these cases have had on the federal docket, as entry-related cases now constitute nearly 70 percent of all federal prosecutions. Protecting against true security and public safety threats means allowing law enforcement to focus its finite resources on them.
What’s more, last year, only 2 percent of illegal border crossers had any criminal history aside from illegal entry. Many of those now facing prosecution could have otherwise cooperated with law enforcement to offer evidence and intelligence against the smugglers and cartels that fuel insecurity near the border. Excessive illegal-entry prosecutions reduce the pool of potential witnesses from which law enforcement can draw to protect the public from more serious crimes.
“Prosecuting all undocumented immigrants” may sound tough in a political ad, but it makes us less safe in practice. It’s also worth asking how far we are willing to go to send a message. If the message doesn’t stop the behavior we’re trying to stop, if it has unintended consequences that make us less safe in the long run, and if it results in government officials ripping children from their mothers’ arms, is it really worth it?
Jonathan Haggerty is a Criminal Justice and Civil Liberties Resident Fellow at the R Street Institute, a free-market think tank in Washington, D.C. Follow him on Twitter at @JHaggrid.