Download the full report - Human Rights Watch

The breadth and scope of criminal prosecutions for illegal entry and reentry, moreover,
have led to procedural shortcuts, including rapid-fire group trials in Operation Streamline,
that imperil the due process rights of immigration defendants.
The considerable financial costs of criminally prosecuting unauthorized migrants also
militate against the current prosecution-heavy approach. A September 2012 report
estimated that incarceration costs alone for those sentenced for illegal entry and reentry
reached $1 billion in fiscal year 2011. Defendants serving sentences for illegal entry and
reentry are a source of the burgeoning federal prison population, and given overcrowding,
many end up in costly facilities run by private prison companies. Other costs relating to
criminal prosecution—including criminal defense attorneys, prosecutors, and more—add
to the costs. Not surprisingly, a number of prosecutors, other law enforcement officials,
and federal judges have criticized the huge reallocation of resources toward prosecuting
people who do not pose a threat to public safety or national security, particularly when the
civil immigration system has its own penalties for illegal entry and reentry.
Human Rights Watch acknowledges that all sovereign states have a legitimate interest in
regulating entry into their territories. We recognize that states have a particular interest in
deterring the illegal entry or reentry of persons who pose a threat to public safety. The US
government has decided that this is best accomplished through criminal prosecution
rather than just civil enforcement of immigration law. But the prosecutions of illegal entry
offenses happening today are overbroad, reaching people who do not belong in prison,
and are thus draining resources that could go to efforts to increase public safety and
create a more secure, efficient, and humane immigration system.
As the Obama administration and Congress debate a potential overhaul of the country’s
immigration laws, there is a danger that prosecutions and statutory penalties for these
offenses will increase in the name of increased “border security.” But the US cannot afford
simply more of the same. A program permitting legalization would be an important step in
addressing the vulnerability of many migrants to abuse and the inequities of the current
immigration system. But rights to family unity and to seek asylum, as well as to due
process, will not be protected unless US policymakers also address the current misguided
and costly overreliance on criminal prosecution in policing the border.
5 HUMAN RIGHTS WATCH | MAY 2013