President Trump made much of his antipathy toward migrants. From his perch at the U.S. Justice Department, Trump’s first attorney general, Jeff Sessions, worked hard to operationalize the president’s racist rhetoric. In April 2017, less than three months into the Trump administration, Sessions instructed federal prosecutors to treat five primary immigration crimes as “higher priorities.”
Government records about the federal prison population suggest that prosecutors heeded the attorney general’s directive, but only for a time. From fiscal year 2018, which began in October 2017, to fiscal year 2019, which ended in September 2019, the U.S. Marshals Service saw its average daily population of suspected immigration offenders grow from 12,641 to 14,728, an increase of 16.5 percent in a single year. By the following fiscal year, however, its average daily population had fallen to 11,865, a four percent decrease from 2018 and a nineteen percent decrease from 2019.
Monthly population figures show a similar trajectory. In October 2017, there were 11,322 people in U.S. Marshals custody on average each day who had been charged with nothing more serious than an immigration offense. By October 2020, the agency counted an average daily population of 8,246 suspected immigration offenders, a twenty-seven percent drop.
Prosecutors’ decisions to move forward or not with charges are usually shrouded in secrecy. But as the government agency that holds everyone charged with any federal crime who is either denied bail or can’t pay the bail amount the U.S. Marshals Service population figures reflect the outcome of their decisions to prosecute. This is especially true of immigration crime, because prosecutors declined to prosecute a trivial fraction of immigration matters. In FY 2018, for example, prosecutors declined to prosecute a mere half of one percent of immigration matters. Compare that to their decisions to not prosecute almost thirteen percent of all cases.
Knowing how many people are imprisoned and why provides an important glimpse into how federal law enforcement policy is actually being implemented. In every month across this three-year period, suspected immigration offenders never fell below 13 percent of the total population of pretrial inmates, a low point reached in September 2020. By contrast, in October 2018, suspected immigration offenders represented almost a quarter (24.68 percent) of all pretrial suspects in federal custody. That said, immigration offenders were never the largest category of pretrial inmates. Rather, in almost each month immigration offenders constituted the second-highest number of federal pretrial inmates, always falling behind drug crime defendants.
The data, which I obtained directly from the U.S. Marshals Service through a Freedom of Information Act request, covers every fiscal year that fell completely under President Trump.