Border Crisis Lesson: Reform Deportation Policies Toward Gang Bangers

Gang violence in Honduras, Guatemala and El Salvador is a major reason for the surge in unaccompanied immigrant children leaving those countries and risking their lives to reach the United States. Many of the young boys are fleeing to avoid being recruited into a gang or forced to transport drugs. Gangs also target adolescent girls to become "girlfriends" and threaten or rape them when they refuse. While we may be generally aware of the gang violence, we should not forget the role that U.S. deportation policies played in the creation of these gangs in Central America.

The two main gangs in Central America -- the 18th Street gang (M-18) and the rival Mara Salvatrucha (MS-13) originally were established in Southern California. M-18 was mostly a 1960s Mexican-American group in Los Angeles. MS-13 was formed defensively by those who fled from Central America during the civil wars of the 1980s who were threatened by M-18. Over time, much cross-fertilization ensued. Even though they may have been in the United States lawfully, once these non-citizens were convicted of their crimes and served their time, they were turned over to immigration officials and deported.

Efficient deportation of gang bangers was facilitated by Congressional reforms in 1996. Changes included the elimination of a deportation relief to an "aggravated felon" who might deserve a second chance by demonstrating rehabilitation. So after 1996, thousands got sent back to Central America, where their baggy pants, tattoos and shaved heads were transformed into effective recruitment tools among vulnerable youth: the M-18 and MS-13 were re-born.

Ironically, the current border crisis thus serves as a good reason to re-think our approach to deporting non-citizens convicted of crimes. Every day, the Department of Homeland Security deports lawful immigrants -- some who entered as refugee infants and toddlers not just from Central America, but from Cambodia and Vietnam as well -- who have been convicted of an aggravated felony. Note that the term "aggravated felony" is broad enough under the immigration laws to include theft offenses, when the term of imprisonment is at least one year, selling $10 worth of marijuana, or smuggling a baby sister across the border illegally. Many criminal prosecutors and immigration judges agree that deportation is a disproportionate punishment to tack on to the prison incarceration that these lawful immigrants have already served. At the very least, they think immigration judges should at least be able to make an assessment of whether or not the person deserves a second chance.

Under the leadership of Attorney General Eric Holder, the Justice Department has recommended sweeping changes the criminal justice system. His "smart on crime" initiative represents a major philosophical shift in how we should view crime and punishment in the United States. Public safety is not simply a matter of prosecution and incarceration; to be effective, we also must focus on prevention and reentry. Importantly, a driving force behind this call to rethink our approach is his concern that many aspects of our criminal justice system may actually exacerbate problems, rather than alleviate them. Locking up drug offenders and other felons then throwing away the key is short-sighted, in his view.

Just as the Attorney General challenges us to do something about the lives being harmed, not helped, by a criminal justice system, we should do something to reform a deportation system that helps those caught up in the system to better themselves, thereby helping their families and the community. We can be creative in developing alternative approaches to immediate deportation, because the no-option approach hurts the affected family and does nothing to promote rehabilitation. For example, why not place these individuals on probation, make them report regularly, and keep an eye on them while the threat of deportation hangs over their head? Use deferred prosecution agreements -- as we do with white collar criminals -- where we monitor behavior compliance for years before charges are dropped. Place them in diversion programs or drug rehabilitation programs. Give state court judges a say -- as they once had -- in whether they think the person should be deported.

Why push ourselves to come up with alternatives to deportation and reinstitute immigration judge discretion? Because, by deporting non-citizens who have grown up here, we essentially throw away their lives. Because, as Justice Brandeis reminded us more than 90 years ago, deportation may deprive a person of "all that makes life worth living." Because immigration judges and prosecutors see the need for nimble approaches and more discretion, rather than being unnecessarily harsh on individuals and their families. Because we can help position these individuals to become better and, in the process, help their families and communities. We now know, we also would be helping their former countries as well as ourselves.