Over the summer, the Trump administration made headlines worldwide when it decided to separate families arriving at the border while criminally prosecuting the parents. This was an especially cruel instance of using the bludgeon of criminal law to target migration. But it wasn’t the first time this happened. Across the Southwest, criminal prosecution of migration has been a common feature in federal courthouses for many years. Many of these individuals are sentenced to time-served, meaning they do little jail time beyond what they spend behind bars awaiting prosecution.
Government data that I obtained recently from the federal Bureau of Prisons show that many thousands are nonetheless sitting in federal custody. From 2000 to 2016, almost 20,000 people were imprisoned every day for nothing more serious than an immigration crime. Specifically, the average immigration offender population from 2000 to 2016 was 19,021. The data, which I obtained through a FOIA request, reflects the BOP’s prison population in September of each year.
Covering all of President George W. Bush’s time in office and most of President Obama’s tenure, these data provide an important reflection of bipartisan immigration imprisonment. Roughly 11 percent of the federal prison population in any given year from 2000 to 2016 constituted people who were there because they violated immigration law. This is an impressive level of consistency given popular perceptions of seismic shifts from Republican to Democratic administrations. The reality is that for tens of thousands of migrants annually, they were convicted and imprisoned no matter who occupied the White House.
Obviously, this is a small component of the overall federal prison population. Still, it shouldn’t be overlooked. Most of these people are locked up because they were convicted of one of two offenses: illegal entry or illegal reentry. In the near future, I’ll write in more detail about the role that these two offenses play in the broader population of immigration prisoners. Nor should we underestimate the power of President Trump and Attorney General Jeff Sessions to augment the severity of entering the United States without the federal government’s permission. I have no doubt that they would like to do so. To properly measure whether they have been successful, we’ll need to wait for more recent data to become available.