BROWNSVILLE, Texas ― It’s time to decriminalize unauthorized border crossings, three Democrats running for top offices in Texas tell HuffPost.
That simple legal reform would have massive repercussions, upending the “zero tolerance” policy that the Trump administration used to split up families at the border. It would still allow the Department of Homeland Security to charge unauthorized immigrants with civil violations, but it would save the government billions in incarceration costs and allow federal prosecutors to spend more time fighting non-immigration crimes. And it would be logistically simpler than abolishing Immigration and Customs Enforcement, the idea currently in vogue on the left wing of the Democratic Party.
Few top Democrats have weighed in on the concept. But during a campaign sweep across South Texas this weekend, congressional candidate Veronica Escobar, gubernatorial candidate Lupe Valdez and U.S. Rep. Beto O’Rourke (D-Texas), who’s running for Senate, all called for some form of decriminalization.
The idea isn’t unprecedented. The law criminalizing unauthorized border crossings dates from 1929 when it was first proposed by U.S. Sen. Coleman Blease, a South Carolina segregationist known for celebrating the lynchings of black men with a ritual dance. But for most of its life, Blease’s law, which was later incorporated into the Immigration and Nationality Act, was rarely used. In fact, until the George W. Bush administration, the U.S. government charged the vast majority of unauthorized immigrants with civil violations, not federal crimes. Treating unauthorized crossing as a civil violation allowed the government to deport unauthorized immigrants without spending huge sums on prosecuting and jailing migrants that U.S. officials planned to deport anyway.
Then, in 2005, officials in the border sector of Del Rio, Texas, ran out of bed space in their civil detention centers. They decided to start using the law criminalizing illegal entry to prosecute immigrants in criminal court. The idea caught on in other border sectors, and within a few years, the government was prosecuting and jailing tens of thousands of migrants annually.
The Trump administration used the same law to enact its family separation policy. By prosecuting the parents of families crossing the border together, the Trump administration effectively forced the children into shelters and the mothers and fathers into federal jails. Today, immigration prosecutions take up roughly half the federal criminal docket, costing the government roughly a billion dollars a year in added incarceration expenses, according to a 2012 estimate by Austin-based advocacy group Grassroots Leadership.
It doesn’t have to be this way, the Democrats said.
“The United States has built a system on incarcerating migrants,” said Escobar, who is likely to win a House of Representatives seat representing El Paso. “We really have to evaluate the way that we’ve criminalized migration.”
Valdez recalled that when she was serving as Dallas County Sheriff, Immigration and Customs Enforcement officials would sometimes describe unauthorized immigrants as “criminals” on the basis of federal immigration convictions alone. Although that classification is accurate under U.S. law, those convictions didn’t make the person more of a public threat, she argued.
“It’s time to reform and look at things,” said Valdez, who is also a former Customs agent. “The majority of people are not coming in to do harm. ... We still have to have some kind of checking and verifying, but I don’t think coming in here undocumented should be a criminal issue.”
O’Rourke, who has mounted a competitive campaign to oust Republican Sen. Ted Cruz from his seat, offered more cautious remarks, focusing primarily on the tens of thousands of mostly Central American asylum-seekers who have crossed into the U.S. in recent years. The Trump administration has repeatedly turned away migrant families seeking to enter the U.S. at legal ports of entry, O’Rourke noted.
“These asylum-seekers — penniless, at wit’s end, after surviving three weeks on the road, very often with their children — then attempt to do what I think any human would do, which is to request asylum in between the ports of entry,” O’Rourke said. “We should not criminalize that.”
Escobar said she arrived at the conclusion that immigration violations should be decriminalized from a human rights perspective. But she urged her critics to consider the high costs of prosecuting and imprisoning immigrants, on top of detaining and deporting them.
“When we treat asylum-seekers like criminals, the next step is we have to jail them, we have to incarcerate them,” Escobar said. “It’s incredibly costly.”
The comments from leading Texas Democrats come as progressives are reimagining the immigration enforcement system in the face of the most hardline administration in recent memory. The boldest and most controversial proposal to date, first argued in the pages of The Nation by Sean McElwee, is to abolish ICE entirely.
But the bill introduced by U.S. Rep. Mark Pocan (D-Wis.) to achieve that goal recommends fielding a commission to contemplate bureaucratic alternatives, instead of outlining a concrete vision. Decriminalizing border crossings, by contrast, only requires striking two sections of federal criminal law.
““We really have to evaluate the way that we’ve criminalized migration.””
Under current law, jumping the border the first time is misdemeanor, punishable by up to six months in prison. Subsequent offenses can carry jail sentences up to 20 years, depending on the person’s criminal record. When ICE detains or deports an unauthorized immigrant, the agency is generally carrying out civil law rather than punishing someone for a crime.
But shortly after becoming attorney general, Jeff Sessions asked all of the 94 U.S. Attorneys to prosecute immigration violations more aggressively and ordered the five whose jurisdictions touch the U.S.-Mexico border to submit plans detailing how they’d ramp up prosecutions for first-time offenders.
By April of this year, Sessions went further, creating a new “zero tolerance” policy that required Border Patrol to refer every person caught crossing illegally for federal prosecution, though in practice neither courtrooms nor federal jails have enough space to convict and incarcerate everyone whom Border Patrol arrests.
The systematic family separations at the border began when the Trump administration extended zero tolerance prosecutions to migrant parents traveling with their children. It couldn’t have happened without the law criminalizing illegal entry.
“The family separation crisis was a crisis created by Jeff Sessions and Donald Trump that was a direct result of having a policy of criminalizing immigrants at the border,” said Bob Libal, the executive director of Grassroots Leadership. “There’s a simple congressional solution to the family separation crisis, and that’s for Congress to repeal the laws criminalizing immigration.”