Most Democrats Want Border-Crossings Decriminalized, Poll Says

A progressive think tank’s results conflict with other major surveys — but its poll also asks a more accurate question.

Nearly two-thirds of Democrats favor leaving civil immigration authorities in charge of immigration violations by decriminalizing border-crossing violations, according to a new poll conducted by Democratic pollster YouGov Blue. 

The poll offers the first sign of liberal support for a sweeping immigration proposal that has gained traction among Democratic presidential hopefuls over the last few months. But the results of the survey of 1,014 voters, carried out on behalf of left-wing think tank Data For Progress, conflict with two similar polls released in the last month, indicating that voters’ perception of the issue hinges on the context in which pollsters pose the question. 

The Data For Progress poll asked whether voters would “support or oppose treating illegal entry to the United States as a civil violation rather than a criminal violation.” It then said that “civil violations are addressed by the immigration system, while criminal violations are addressed by the criminal justice system.” 

Some 64% of respondents who identified as Democrats voiced support for the proposal, compared to 31% of Republicans. Total support, including by independent and unaffiliated voters, clocked in at 48%, with 32% opposed, 11% expressing no opinion, and 8% saying they didn’t know. 

“It shows that progressive voters want to see bold ideas on immigration that roll back the mass criminalization and deportation that we’ve seen for the last 15 to 20 years,” Bob Libal, the executive director of the Austin-based criminal justice group Grassroots Leadership, told HuffPost. “Reforming the federal criminal justice system also has to include ending these mass prosecutions for simple immigration offenses.”

A U.S. Border Patrol vehicle illuminates a group of Central American asylum-seekers before taking them into custody near the
A U.S. Border Patrol vehicle illuminates a group of Central American asylum-seekers before taking them into custody near the U.S.-Mexico border on June 12, 2018, in McAllen, Texas. The group of women and children had rafted across the Rio Grande from Mexico and were detained by U.S. Border Patrol agents before being sent to a processing center for possible prosecution and separation.

Immigration agencies like Border Patrol and Immigration and Customs Enforcement are the ones charged with arresting, detaining and deporting unauthorized migrants. When they punish immigration infractions, they usually operate under civil law. Deportation is a civil penalty. 

But crossing the border without authorization is also a federal crime. And Democratic presidential candidates have increasingly scrutinized the use of that 1929 law to route migrants into federal jails at the border since President Donald Trump used it to systematically split up migrant families in a widely reviled experiment last year. 

Immigrant rights groups and criminal justice reformers have long criticized the policy, first implemented in 2005 under the George W. Bush administration, of fast-tracking migrants through criminal courts to vastly expand the bed space available to immigration authorities.

Under the Obama administration, prosecutions for immigration crimes already policed by civil authorities overtook half the federal criminal docket ― a trend that Trump exploited by creating a “zero tolerance” policy to boost immigration prosecutions at the border shortly after taking office. The Trump administration carried out the family separation policy by extending prosecutions for illegal entry to migrant parents traveling with their children. 

In response, former Housing and Urban Development Secretary Julián Castro called in April for the repeal of the law criminalizing illegal entry and challenged the rest of the Democratic field to follow him in the first Democratic debate last month. Most other 2020 hopefuls have followed his lead, including Sen. Elizabeth Warren (D-Mass.) who made decriminalization a central part of her immigration platform

Calls to put immigration enforcement exclusively in the hands of civil authorities, however, have invited sharp backlash from former Obama administration officials, who view their party’s increasingly progressive direction on immigration as a potential liability in the general election. 

Former Homeland Security Secretary Jeh Johnson likened the idea to a declaration that the United States would have “open borders.” The hosts of “Pod Save America,” a podcast run by Obama alums, contended that the decriminalization debate could imperil the larger goal of comprehensive immigration reform. 

But Data For Progress founder Sean McElwee, best known for popularizing the call to “Abolish ICE,” hailed the results as evidence that leading Democrats’ calls to decriminalize border crossings would not cost them when it comes time to face Trump in the general election. 

“We need to reject the absurd assertion that we cannot protect immigrants and win elections,” McElwee wrote in an email to HuffPost. 

The Data For Progress poll sheds light on voters’ perception of an issue that has rarely received public debate. Presidents Bush and Obama vastly expanded immigration prosecutions using their control over the attorney general’s office to enforce existing law, rather than by trying to pass new legislation through Congress. 

Even as immigration prosecutions grew from a tiny fraction of the federal criminal caseload into a key driver of federal incarceration over the last 15 years, public debates about immigration mostly centered on the perpetually stalled efforts to jam comprehensive reform through an unwilling Congress and the sweeping executive actions taken by Obama and Trump. 

We need to reject the absurd assertion that we cannot protect immigrants and win elections. Data For Progress founder Sean McElwee

Two other surveys conducted in recent weeks drew sharply different results, likely because the pollsters’ questions intimated that repealing the illegal entry law would leave immigration violations either scaled down to fines or unpunished. 

A Hill-HarrisX poll released earlier this month reached the opposite conclusion of the one commissioned by Data For Progress, with 41% of voters backing criminalization and only 31% saying the civil system should handle those offenses.  

But the pollster posed a false question. The Hill-HarrisX poll asked whether voters thought migrants who cross the border without authorization should “face civil fines or should they be subject to criminal prosecution.” No one has proposed shifting immigration enforcement to a scheme based on fines. The punishments under civil law include deportation and yearslong prohibition from returning legally to the United States. ICE’s detention system that locks up more than 50,000 migrants per day and the temporary holding facilities run by Border Patrol also both operate under civil law. 

And while immigration violations take up half the federal criminal caseload, every person prosecuted for the misdemeanor of illegal entry or the felony of illegal reentry also has to face deportation proceedings under civil law. 

A separate poll this month conducted by Marist on behalf of NPR and PBS NewsHour asked simply whether “decriminalizing illegal border crossings” was a good idea or a bad idea, without mentioning the civil penalties. Only 27% of Americans thought it was a good idea. 

The diverging poll results highlight the difficulty that decriminalization supporters will have in framing a trailblazing proposal to reform a practice that received scant attention until now. Some independent analysts who support decriminalization have worried that Trump could exploit confusion about the issue, given that many people are unaware the United States enforces immigration mostly through civil law and has only bolstered that system with mass prosecutions for border violations since 2005.

Cristóbal Ramón, a senior policy analyst on immigration with the Bipartisan Policy Center who supports reforming immigration penalties, said he was concerned that voters who aren’t familiar with the complexities of immigration law can easily be led to believe that decriminalization would eliminate enforcement. In fact, the proposal would end the practice of prosecuting migrants en masse for the same infraction that already lands them in deportation proceedings. 

Democrats’ aversion to discussing what penalties should remain for immigration violations if prosecutions get scrapped reinforces that misconception, Ramón said.  

“If they’re going to talk about decriminalization of illegal entry, they need to start by talking about what won’t change by decriminalizing,” Ramón said of Democrats who back the idea. “They should educate the public on this.”