All but two Democratic presidential hopefuls backed a proposal to decriminalize unauthorized border crossings on the second night of the first 2020 Democratic debate, reflecting the growing influence of former Housing and Urban Development Secretary Julián Castro in driving the debate.
Castro, the first candidate to issue an immigration platform, stoked one of the most contentious moments of the first night of debate on Wednesday by challenging everyone on stage to get behind his proposal to repeal the law that made the Trump administration’s seven-week experiment with systematic family separation possible. Castro specifically called out former U.S. Rep. Beto O’Rourke (Texas), who has argued the law should remain on the books.
Immigration violations and punishments, including detention and deportation, are generally enforced under civil law. But crossing the border without permission is a misdemeanor punishable by up to six months in prison. To carry out the family separation policy, the Trump administration systematically prosecuted migrant parents arriving with their kids at the border on criminal immigration charges ― leaving their then-unaccompanied children in the hands of civil immigration authorities.
Castro, in a position long advocated by progressive immigrant rights groups, insists the civil system is enough and prosecutions lead to abusive outcomes.
“We had a very spirited debate on this stage last night on the topic of decriminalization of the border,” moderator José Díaz-Balart said Thursday night. “Raise your hand if you think it should be a civil offense, rather than a crime, to cross the border without documentation.”
The proposal met with wide approval. Eight of the 10 candidates on stage raised their hands, including three who appeared to go on record backing the idea for the first time: Sens. Kamala Harris (Calif.) and Kirsten Gillibrand (N.Y.), as well as former Colorado Gov. John Hickenlooper. U.S. Rep. Eric Swalwell (Calif.) had previously told The Washington Post he would only favor decriminalizing unauthorized border crossings as part of a compromise to get comprehensive immigration reform passed, but he joined the majority on stage.
“That criminalization is the basis for family separation,” South Bend, Indiana, Mayor Pete Buttigieg said. “You do away with that, it’s no longer possible.”
The only candidate to flatly reject the idea was Sen. Michael Bennet (Colo.).
Former Vice President Joe Biden took no position. As the others on stage held up their hands, Biden half-raised his, gesturing with his forefinger as if asking the moderators to hold on or to let him speak. Asked directly whether he wanted to decriminalize border crossings, Biden free-associated about unrelated immigration topics.
“The first thing I would do is unite families,” Biden said. “I’d surge immediately billions of dollars worth of help to the region, immediately. Look. I talk about foreign policy.”
Although the law criminalizing illegal entry was first passed in 1929, the Justice Department only began prioritizing those cases in 2005, as a way to funnel migrants into federal jails in areas that lacked bed space for those detained in the civil system. By the time Barack Obama took office in 2009, immigration prosecutions had skyrocketed to the point that they had overtaken half the federal criminal docket. They continued to take up half the federal criminal caseload through his presidency.
The trend has only increased under Trump, whose former attorney general, Jeff Sessions, instituted a “zero tolerance” policy to focus more resources on misdemeanor immigration prosecutions.
Thursday’s impromptu onstage poll marked a turning point for the debate about decriminalizing border crossings. Prior to Trump’s election, Democratic politicians rarely discussed the sprawling criminal immigration system.
But the widely reviled family separation debacle of last year created an opening for critics to take aim at it.