Since the last years of the second term of President George W. Bush, immigration crime prosecutions have dominated the national picture of criminal dockets in the federal district courts. In 2016, for example, I previously reported about a staggering 68,314 immigration crime cases disposed of that year. No other category of offense even came close. The second most prosecuted category of offense that year, drug crimes, numbered less than 24,000 prosecutions.
It hasn’t always been this way. Traditionally, prosecutors didn’t seek criminal penalties for people who violated immigration law. At most, these infractions were considered best addressed through the nation’s system of immigration courts where the outcome frequently ended with deportation. Finding historical data to illustrate the exceptional moment in which United States law enforcement and prosecutorial policies have been living for the last decade is sometimes difficult. But while working on a book to be published next year by The New Press—tentatively titled Migrating to Prison: Immigration in the Age of Mass Incarceration—I dug up some old data about prosecutorial trends in federal courts in the 1979 Annual Report of the Director of the Administrative Office of the United States Courts.
Keen crimmigration.com followers won’t be surprised to know that the tens of thousands of prosecutions annually we’ve become accustomed to are a magnitude greater than past practices. In 1970, for example, a mere 575 immigration crime cases were reported pending. By 1979, the number had grown to 783, but still far below figures today’s readers would recognize.
Admittedly, the 1970-1978 data represent criminal cases pending in the district courts whereas the 2016 data I reported focused on cased disposed of and accounted for proceedings before district judges and magistrate judges. Another old report sheds some light on the magistrates. In 1972, they decided 9,798 immigration crime cases. Again, the number increased over the course of the decade but not substantially. There were 13,364 such defendants disposed of in 1979.
Clearly, this not a perfect comparison. Still, having some insight into how commonly—or, better put, uncommonly—immigration crime showed up inside federal courts in decades past is a reminder that today’s norm isn’t set in stone. Rather, it’s the product of deliberate policy choices.