Download the full report - Human Rights Watch

II. Criminal Prosecutions Fail to
Focus on Serious Threats
When Congress increased the maximum penalty for illegal reentry in 1988, lawmakers
explained that their rationale was to target “alien drug traffickers who are considering illegal
entry into the United States,” and cited in particular the example of a drug kingpin who was
wanted for about 50 murders. 37 Prosecution policies today are generally set by individual US
Attorneys and vary from district to district, but outside of programs like Operation Streamline,
prosecutors continue to affirm that prosecutorial resources, particularly for charging felony
illegal reentry, are reserved for dangerous criminals who are a threat to public safety. 38
Similarly, John Morton, director of US Immigration and Customs Enforcement (ICE), in
testimony before Congress in March 2013, asserted that immigration enforcement resources
are focused on the apprehension and removal of “individuals who fall within our highest
enforcement priorities, namely national security and public safety threats.” 39
The US government has a strong public safety interest in keeping dangerous criminals from
entering its borders. Human Rights Watch’s research, however, indicates that prosecutions
are targeting many persons who pose no such threat. The rapid overall growth in criminal
prosecution has been accompanied by the even more rapid growth in prosecution of
unauthorized immigrants with no or minor criminal records.
The existence of a prior criminal conviction is not necessarily an accurate proxy for future
dangerousness, particularly with regard to old convictions, and a prosecutorial policy built
on such a faulty rationale can result in a system of preventive detention that violates
fundamental rights.
37 See Doug Keller, “Re-thinking Illegal Entry and Re-entry,” Loyola University Chicago Law Journal, vol. 44, Fall 2012.
38 Anna Gorman, “Illegal reentry into the US increasingly leads to prison,” Los Angeles Times, March 16, 2008,
http://articles.latimes.com/2008/mar/16/local/me-crackdown16 (accessed March 28, 2013) (quoting Julie L. Myers, then
assistant secretary of Immigration and Customs Enforcement, stating, “They are some of the worst of the worst…. They are people
that citizens of any community would want off the streets.”); Kent Faulk, “Charges for illegal re-entry on rise in Alabama,”
Birmingham News, September 25, 2011, http://blog.al.com/spotnews/2011/09/charges_for_illegal_re-entry_o.html (accessed
March 28, 2013) (quoting US Attorney Joyce White Vance, stating, “We target people who are a risk to the community.”)
39 Statement of John Morton, director, US Immigration and Customs Enforcement (ICE), “Regarding a Hearing on Immigration
Enforcement,” US House of Representatives, Committee on the Judiciary, March 19, 2013,
http://www.ice.gov/doclib/news/library/speeches/130319morton.pdf (accessed April 12, 2013).
23 HUMAN RIGHTS WATCH | MAY 2013