Democratic presidential candidate Elizabeth Warren called Tuesday for repealing the decades-old law criminalizing unauthorized border crossing ― the same law the Trump administration used to systematically split up families at the border last year.
Warren joins fellow 2020 contender Julián Castro and several other prominent Democrats in backing a reform that, if enacted, would give civil immigration courts exclusive legal control over immigration enforcement at the border. Under the current system, tens of thousands of migrants who cross without authorization, including some asylum-seekers, face federal prosecution in criminal courts and jail time before they get in front of an administrative judge, who decides their immigration cases.
Those facing deportation in an immigration court are not being accused of a crime. But crossing the border without authorization is also a misdemeanor punishable by up to six months in jail. Repeat offenders can be charged anywhere in the country and convicted with little more than evidence of a deportation on their record and punished with sentences ranging up to 20 years, depending on the migrant’s criminal record.
While the laws criminalizing unauthorized immigration have been on the books since 1929, they rarely faced much scrutiny from the public until the Trump administration, in a widely reviled seven-week experiment last year, used them to split up families at the border as a matter of public policy.
Prosecuting immigrant parents for the crime of illegal entry pushed them into criminal custody with the U.S. Marshals Service, leaving their now-unaccompanied children in the care of immigration authorities.
In April, Castro, the former secretary of Housing and Urban Development, became the first Democratic presidential candidate to back a repeal of the law criminalizing illegal entry.
While Warren has yet to release a comprehensive immigration platform, her campaign confirmed to HuffPost that she also now favors repealing the law criminalizing migration.
“I agree with Secretary Castro,” Warren said in a statement to HuffPost. “We should not be criminalizing mamas and babies trying to flee violence at home or trying to build a better future. We must pass comprehensive immigration reform that is in line with our values, creates a pathway to citizenship for undocumented immigrants including our DREAMers, and protects our borders.”
The statement marked the first time that Warren had weighed in on the laws criminalizing unauthorized border crossing in such specific terms. She praised Castro’s immigration platform during an MSNBC appearance in May, but stopped short of endorsing it.
“I think he’s got some really good ideas around this,” Warren said of Castro at the time. “I’m very interested in his work. I admire it.”
Several other prominent politicians ― Rep. Raúl Grijalva (D-Ariz), Rep. Veronica Escobar (D-Texas) and California Attorney General Xavier Becerra (D) ― have also backed repealing the law criminalizing illegal entry. Immigration enforcement should belong exclusively to the civil system, they say.
Reformers increasingly support that view. A group of nearly 250 civil rights organizations signed on to a letter last week demanding the decriminalization of migration.
“Prosecuting migrants for re-entry after deportation is not a deterrent,” Judy Greene, the co-author of a major study detailing the criminal immigration system, wrote in an email to HuffPost. “Most come back because they have families in the U.S. Many have U.S. citizen spouses and children. They return because they love their families and want to take care of them.”
Democratic presidential candidates, however, have rarely discussed the law, despite roundly condemning the family separations that stemmed from it.
Sen. Cory Booker (D-N.J.) told The Washington Post this month he opposes prosecuting people on border-crossing violations, saying the civil system should handle those cases. As of June 17, the paper had identified eight candidates ― not including Warren ― who favored opposing criminal penalties for unauthorized border crossings, though not all of the candidates’ statements aligned with that position. Between June 17 and 21, the Post updated its tracker, including Warren’s position, but did not refer to her support for repealing the laws criminalizing illegal entry or felony reentry.
Former Rep. Beto O’Rourke of Texas told HuffPost last year that the law should not be used against asylum-seekers. But he told CNN this month the law criminalizing illegal entry should remain on the books, falsely asserting that it provided a legal mechanism to prosecute human smugglers and drug runners. (Those laws are enforced through different statutes.)
“We should not be criminalizing mamas and babies trying to flee violence at home or trying to build a better future.”
- Sen. Elizabeth Warren (D-Mass.)
Congress first criminalized unauthorized border crossings in 1929, when it passed a law authored by famed segregationist Sen. Coleman Blease, a man known for celebrating the lynchings of black men. The law played a major role in the early expansion of the federal penitentiary system, according to “City of Inmates” by historian Kelly Lytle Hernández.
But the George W. Bush administration transformed the application of the law with the 2005 creation of Operation Streamline. Under the program, the departments of Justice and Homeland Security teamed up to prosecute migrants en masse in expedited proceedings, so they could funnel them into federal jails in border jurisdictions where bed space in civil immigrant detention centers had run low. The program, which began in Del Rio, Texas, quickly expanded to other border jurisdictions.
That system swallowed up half the federal criminal docket throughout President Barack Obama’s presidency. Trump’s first attorney general, Jeff Sessions, capitalized on the trend with the creation of a “zero tolerance” policy of slapping as many migrants on the border as possible with criminal penalties instead of just placing them in deportation proceedings.
Last year, immigration violations took up some 57% of the federal criminal docket at roughly 94,000 prosecutions, according to the Transactional Records Access Clearinghouse database kept at Syracuse University. Meanwhile, white collar prosecutions have plummeted to a 20-year low last year.
CORRECTION: This article has been updated to reflect that the Post updated its tracker on Warren’s position prior to the publication of this story.