Attorney General Jeff Sessions continues to insist that by more aggressively prosecuting immigrants for the crime of crossing the border illegally, the Justice Department is somehow cracking down on violent crime.
But data he cites himself indicate the opposite is true.
You wouldn’t know it hearing Sessions’ words to a group of law enforcement officials at Central Islip, New York, on Friday. His speech focused heavily on illegal immigration, conflating it with the problem of transnational criminal gangs like MS-13 who make up a minuscule portion of the undocumented population of 11 million. “The President made a promise to make America safe again,” Sessions said, according to a draft of his prepared remarks. “And that is exactly what we are doing at the Department of Justice.”
Except when they aren’t. In reality, about half the federal criminal docket is clogged with immigration prosecutions that largely duplicate the work of the civil enforcement system. Sessions wants to prioritize those prosecutions even further, painting undocumented immigrants as disproportionately criminal, despite evidence to the contrary.
“The Bureau of Justice Statistics just released a report showing that 42 percent of defendants charged in U.S. district court were non-U.S. citizens,” Sessions’ remarks read. “And according to the U.S. Sentencing Commission, in 2013, 48 percent of all deported aliens who were convicted for coming back to the United States illegally were also convicted of a non-immigration related crime.”
A closer look at the details in the BJS report he cites shows that Sessions uses incomplete data and twisted logic to craft a misleading argument.
The fact that 42 percent of those charged in U.S. district court were non-citizens should disturb Americans, but not for the reasons Sessions argues.
The truth behind that statistic is that the federal courts don’t prosecute much in the way of violent crime at all. Only 1.9 percent of federal prosecutions involved violent crime in 2014, according to the BJS. Instead, DOJ focuses on the crimes of “illegal entry” (a misdemeanor) and “illegal re-entry” (a felony).
But Sessions’ comments elide even that basic reality. Let’s start with the fact that it’s clear he focuses his remarks on undocumented immigrants, who actually made up 37 percent of the defendants in U.S. District Court in 2014.
That figure in itself is misleading. Most illegal re-entry cases are pled down to misdemeanor illegal entry charges and disposed of in Magistrate Courts near the border as petty offenses, despite the fact that virtually all of them result in conviction and carry a jail sentence. Around seven in 10 immigration prosecutions in 2014 took place in Magistrate Court, not U.S. District Court.
Had Sessions chosen to present a fuller picture of the data, his audience would hear that immigration prosecutions made up 53 percent of the federal criminal docket in 2014.
If he had, those listening might have wondered why DOJ spends its time that way, rather than going after more serious cases involving violence or white-collar crime. Millions lost their homes in the wake of the fraud-plagued 2007 housing crisis, but the Justice Department didn’t spend half its time prosecuting that.
At any rate, Sessions sticks with the U.S. District Court data, which generally means felony re-entry cases. They often involve people living far from the border, many of whom established their lives here years ago. And he uses the stats to make the related point that about half of those defendants had some other non-immigration crime on their record, citing the U.S. Sentencing Commission.
There’s a few problems with this. First, we don’t know how many of those criminal records include petty offenses like marijuana possession or more serious crimes like homicide.
If pressed, Sessions would be forced to admit that last year only 4.4 percent of illegal re-entry offenders last year had criminal histories that put them in the most serious level of Category VI, according to the Sentencing Commission. The most common criminal history level, at 28.6 percent, was Category I, the least serious. And regardless of what they include, a person with a conviction who has served a jail sentence has done their time. But enhancements defined in federal law can boost the maximum sentence for illegal re-entry from two years all the way up to 20.
Second, disregarding the Magistrate Court data means leaving 69 percent of the total 2014 caseload for immigration prosecutions out of the picture. That results in Sessions wildly elevating the number of people with criminal records unrelated to immigration. Those who end up in U.S. District Court facing illegal re-entry charges were often targeted by Immigration and Customs Enforcement and later referred for prosecution precisely because they had some sort of criminal record.
That leads to the third and most important problem with Sessions’ assertion. Another way to phrase what he said is that just over half of the felony re-entry prosecutions in U.S. District Court for 2013 involved someone with no criminal record at all, with the possible exception of an immigration offense. The fact that the Justice Department prioritized cases like those well before President Donald Trump took office shows the degree to which the federal courts have transformed into a parallel immigration enforcement system that often punishes offenders more harshly than the detention and deportation system run by ICE and Border Patrol.
The federal courts and the penitentiary system are both finite resources. But every president since Bill Clinton has chosen to increase the DOJ’s attention on the crimes of crossing the border illegally and returning to the United States after deportation.
Half the federal criminal caseload isn’t good enough for Sessions. He sent a memo this month to U.S attorneys in all 94 districts directing them to consider bringing felony re-entry charges for any person apprehended with a deportation on his or her record. The only thing they need to lock someone up for illegal re-entry is to show a federal judge proof that a defendant has been deported in the past.
This is easy work for the Justice Department. But don’t expect it to make the country safer.