Last week Human Rights Watch released a damning report on the federal government’s sustained effort to use criminal law and procedure to sanction immigration law violations. The report, Turning Migrants into Criminals: The Harmful Impact of U.S. Border Prosecutions (May 2013), documents the many ways in which the criminal justice system has been employed to punish conduct that previously was largely dealt with through the civil immigration system or that didn’t often register on the government’s radar.
Though the 83-page report has much to offer, there were a few aspects worth highlighting. First, it does a remarkable job tracking the increased reliance on the criminal offenses of illegal entry, INA § 275, and illegal reentry, INA § 276. Though both have been federal crimes for many decades, neither was used much until 2007. A graph that the report’s author, U.S. Program researcher Grace Meng, included on page 13 vividly displays the Obama Administration’s fondness for criminally punishing immigration law violations that could just as well be sanctioned through the civil immigration court system. From about 11,000 prosecutions for illegal entry and another 12,000 or so for illegal reentry in fiscal year 2007, last year (FY 2012) the federal government pursued 48,032 illegal entry prosecutions and another 37,196 illegal reentry prosecutions. One federal magistrate judge “who estimates he has presided over 17,000 [illegal entry] cases, described his role as ‘a factory putting out a mold.’” HRW, Turning Migrants into Criminals, at 35. Not exactly the picture of justice.
Given these numbers, it’s no surprise that “[i]mmigration cases now outnumber all other types of federal criminal cases filed in US district court.” HRW, Turning Migrants into Criminals, at 14. In the federal district court for the Southern District of Texas—a mammoth district that covers Houston to the Río Grande Valley along the border—
a full 45% of district court cases concerned illegal entry and roughly another 11% dealt with illegal reentry a full 65% of cases primarily involved illegal entry, illegal reentry, or other immigration offenses. HRW, Turning Migrants into Criminals, at 21. Viewed through another lens, “45% of illegal entry cases and 11% of illegal entry nationwide are filed in South Texas” Meng explained in response to my original post. With case loads so heavily flooded with immigration cases, these courts are on the brink of being unable to deal with any other type of federal criminal prosecution. This is particularly concerning given more than a quarter of people prosecuted for illegal entry in FY 2011 had no prior convictions that merited a sentencing enhancement, suggesting that these are not people who are particularly prone to engaging in criminal conduct. HRW, Turning Migrants into Criminals, at 27.
Not only is the pursuit of immigration crime changing the character of federal courts’ criminal docket, it’s also changing the face of federal criminal prosecutions. About 30% of all inmates who entered the federal prison system in FY 2010 were placed there because of an immigration offense conviction, a big jump from 1998 when they accounted for 18% of new federal prisoners. HRW, Turning Migrants into Criminals, at 73. Meanwhile, an estimated 88% of people convicted of immigration offenses in 2012 were Latinos. HRW, Turning Migrants into Criminals, at 17. If this trend continues, the historically low rate of imprisonment for immigrants could change, fueling claims by immigration restrictionists that immigrants commit a lot of crime and fill prison cells.
The report places much of the criticism for this expanding criminalization on Operation Streamline, an initiative through which dozens of people are simultaneously prosecuted for immigration crimes. “A single proceeding may include two dozen defendants or more than 100, depending on the district.” HRW, Turning Migrants into Criminals, at 36. Though individual judges and the Ninth Circuit have expressed concerns about the constitutionality of such proceedings, they continue nonetheless. HRW, Turning Migrants into Criminals, at 38.
Criminal defense attorneys, not surprisingly, have a tough time devising individualized defense plans for each defendant. According to the report, “the amount of time they [defendants] spend with their attorney before they plead guilty may be as little as 5 to 10 minutes.” HRW, Turning Migrants into Criminals, at 37. Consequently, in the words of a magistrate judge quoted in the report, defense attorneys function as “‘ushers on the conveyor belt to prison’.” HRW, Turning Migrants into Criminals, at 38.
There’s much more that could be said about the report, but I’ll leave it to the author to do that in her own words. The full report is available here and a press release and other information is available here. A Huffington Post article about this report is available here.
[Update: I updated paragraph 3 in light of Meng’s correction in the comment below.]