Crossing the border without authorization should no longer be a crime, a group of nearly 250 immigrant defense and civil rights wrote in a letter to congressional leaders Wednesday, highlighting growing discontent with a nearly century-old law that President Donald Trump used to carry out his seven-week experiment with systematic family separations at the border.
The letter demands a broad rollback to immigration enforcement measures signed into law by Bill Clinton back in 1996, which critics view as the beginning of a major buildup of the detention and deportation systems.
In addition to repealing the law criminalizing unauthorized border crossings, the groups demanded an end to immigrant detention without bail, halting automatic deportations of people based on criminal convictions, and disentangling immigration enforcement from local policing.
“An entire generation of people in this country have never experienced immigration apart from criminalization, as law enforcement and immigration enforcement functions have merged to arrest, detain, surveill, punish, and exile people of color,” the letter reads. “The abuses of these criminal legal and immigration systems have devastated our communities.”
The law making illegal entry a misdemeanor and subsequent violations a felony was authored by segregationist Sen. Coleman Blease of South Carolina in 1929. But the Anti-Terrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act signed by Clinton in 1996 both made the law more severe by expanding the list of crimes that could be used as enhancements to push up jail sentences.
Prosecutions for those immigration violations steadily increased after the two laws passed, more than tripling in number to 15,424 by 2003, according to data compiled by the Transactional Record Access Clearinghouse at Syracuse University.
Under current law, the crime is typically punished by a maximum of two years in prison, but sentences can run as high as 20 years, depending on the convict’s criminal record. The vast majority of those prosecuted are Latin American.
In practice, judges usually hand down shorter sentences. In 2017, illegal reentry sentences averaged one year, according to the U.S. Sentencing Commission.
The George W. Bush administration greatly expanded petty immigration prosecutions in 2005, as a way to funnel migrants into federal jails run by the U.S. Marshals Service in parts of the border where detention bed space had run low.
Border-crossing violations swallowed up half the federal criminal docket in 2008, despite the fact that illegal crossings began to decline precipitously around that time. Under the Trump administration’s “Zero Tolerance” policy, those numbers continued to rise to 57 percent of all federal criminal cases last year.
Those efforts have created a parallel criminal enforcement system for immigration. Living in the United States without authorization is a civil offense adjudicated by immigration courts, not criminal courts.
The law criminalizing illegal entry gained wider attention last year, as Trump used it to enact his widely reviled experiment with systematic family separations at the border. When prosecuting parents for the crime of illegal entry, which parents had not typically faced in the past when traveling with their children, federal officials sent adults into the criminal immigration system and their kids into the civil one.
“People have seen the mind-boggling ways in which the federal government has been prosecuting people under these statutes,” Benita Jain, supervising attorney with the Immigrant Defense Project, told HuffPost. “There are issues that are fueling the deportation and incarceration crisis that we haven’t been talking about. It’s time to talk about them.”
In response to Trump’s family separation policy, Reps. Veronica Escobar (D-Texas) and Raúl Grijalva (D-Ariz.) said last year that immigration should be decriminalized. Former Housing and Urban Development Sec. Julián Castro made the repeal of the law criminalizing migration a centerpiece of his platform for his Democratic presidential nomination run.
“Little by little, folks are understanding that the policy solution to family separation isn’t just making family reunification easier, but also addressing the underlying problem, which is the prosecution itself,” Jacinta González, senior campaign organizer with Mijente, said. “Folks want Congress to pass something that will get to the root of these problems. Decriminalizing migration isn’t an abstract thought ― it’s a concrete demand that legislators can act on.”