Border Crisis of Conscience

Wheaton College Associate Professor of Politics and Law and Director of the Wheaton Center for Faith, Politics, and Economics  David Iglesias, J.D. is a member of NYU School of Law's Brennan Center National Task Force on Rule of Law and Democracy. This post was originally published on the Brennan Center's website.

From 2001-06, I served as United States attorney for the District of New Mexico under the administration of President George W. Bush. I was responsible for more than 11,000 prosecutions, most of them immigration related. Securing our borders is important, if unglamorous work. We need to know who is coming into our country and why.

But in recent weeks, I’ve joined the millions of Americans stunned by the separation of families at the United States border with Mexico. Our immigration system is broken, but the president’s zero tolerance for people crossing the border is more than just a moral outrage — it rejects decades of administrations deferring to prosecutors in the region to know how best to deal with immigration cases. The Trump Administration has focused on making America great again, but we need to refocus on making America good again. As French philosopher Alexis de Tocqueville observed, “America is great because she is good. If America ceases to be good, America will cease to be great.”

The five districts from southern Texas to southern California are routinely the busiest in the country for U.S. attorneys and drive most Justice Department prosecutions. Historically, in both Democratic and Republican administrations, immigration cases are either the most common federal cases prosecuted or are second only to drug cases.

Traditionally, U.S. attorneys have been given discretion to tailor case thresholds because they know their districts better than anyone else, including the bureaucrats in Washington. As “boots on the ground,” they know that the border immigration problem is not one size fits all — lightly populated desert areas like southern New Mexico have different illegal immigration issues than the dense urban areas between Tijuana and San Diego, or the long stretch of the Rio Grande in Texas that serves as the border. Prior administrations wisely gave local federal prosecutors discretion to make adjustments to case intake.

Which is why this blanket zero tolerance policy to treat everyone who crosses the border as a criminal is a colossal mistake.

First, the response just doesn’t comport with reality. The number of illegal crossing arrests has drastically declined, from a high of about 1 million in 2000 to slightly more than 300,000 in 2018. In fact, we haven’t seen numbers this low since the Nixon Administration in the early 1970s. Yet the Trump Justice Department has been directed to respond as if hordes of immigrants were storming America’s ramparts like an invading force.

Second, implementation of the blanket zero tolerance policy threatens to overwhelm available resources. The Justice Department prosecutes a total of about 70,000 cases each year, including some 20,000 immigration cases. The overall number will explode to more than 300,000 if “zero tolerance” is applied literally. And if zero tolerance results in all 300,000 cases being prosecuted by the Justice Department, federal court will have to hold mass hearings, mass trials, and mass sentencing, and the whole affair could double the current number of incarcerations from approximately 200,000 to over half a million.

Zero tolerance may make a catchy bumper sticker, but it is the very definition of bad public policy. Context must be considered if we are to maintain our world-class criminal justice system. The clear majority of these cases will be misdemeanor offenses of “entry without inspection,” which carries a maximum one-year sentence.

Federal court traditionally has been reserved for prosecuting serious violators of federal law — drug traffickers, terrorists, white-collar criminals, and felons with firearms to name a few — not people who want to work in the United States without proper inspection or permission.

Finally, are we really a country that will, as a matter of national policy, separate a young child from his or her parent over a minor, nonviolent misdemeanor? Besides the immorality of breaking apart families in this fashion and placing children at risk, it is terrible public policy to prosecute in federal court a first-time immigration offender for a misdemeanor.

Indeed, if this policy is kept, federal courts along the border will be overwhelmed with nothing but immigration cases, and serious crimes will languish under the weight of minor offenses. Federal courts on the southwest border will be reduced exclusively to handling immigration offenses and will essentially become federal traffic court.

We are a nation of immigrants, and we need to make sure Washington hears our message loud and clear. Fix this immigration problem now. Protect the sanctity of the family. Stop the zero-tolerance policy. If we are indeed the “city shining on a hill,” it’s time we put away the smudge pots and start cleaning house.