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IV. Is It Worth It? The US government’s stated rationale for prosecutions for illegal entry and reentry is twofold: they help deter illegal immigration and keep dangerous criminals outside the United States. There is reason to question whether increasing reliance on prosecutions is doing as much to deter illegal immigration as the government seems to think, and with increasing numbers of nonviolent migrants being swept into prison, the prosecution-heavy approach to border control cannot be said to be targeting mainly dangerous criminals. To the extent that the current approach is advancing important goals, moreover, its successes should be weighed against its costs. The costs to the federal government of prosecuting so many cases are tremendous and continue to grow. Even as the federal inmate population increases, the population of inmates in state prisons around the United States has started to drop, as state governments have begun asking whether the costs of incarcerating so many people, and in particular nonviolent drug offenders, outweigh the benefits. 187 If the impact on non-citizens with strong family ties in the US does not get consideration, at least the costs of an overcrowded federal prison population should prompt US officials to consider the amount spent prosecuting and incarcerating people, many of whom never committed a serious offense and most of whom will eventually be deported. Limited Deterrent Effect Setting criminal justice policy is not an exact science, but in the case of illegal entry and reentry, the behavior the federal statutes prohibit is particularly challenging to control through criminal sanctions for several reasons. The number of unauthorized migrants apprehended in recent years near the southern border has decreased significantly. 188 US Customs and Border Protection (CBP) has 187 Brad Plumer, “The US prison population is shrinking. But will it last?” Washington Post, January 5, 2013, http://www.washingtonpost.com/blogs/wonkblog/wp/2013/01/05/americas-prison-population-is-shrinking-but-will-it-last/ (accessed April 14, 2013). 188 US Customs and Border Protection (CBP), US Border Patrol, “Southwest Border Sectors, Total Illegal Alien Apprehensions by Fiscal Year,” 69 HUMAN RIGHTS WATCH | MAY 2013
credited the decrease to both enhanced enforcement efforts and changes in the US and Mexican economies. But to the extent CBP’s border enforcement activities have played a role, it is not clear that criminal prosecution, as opposed to other aspects of enforcement, merits the credit. In general, deterrence requires information about the consequences of a criminal act reaching the potential offender, generally through consistent application of the law. 189 But it is difficult to design a system that can inform millions of non-citizens of a US criminal law and how it may be applied. Despite the rapid growth of prosecutions, only a small percentage of unauthorized immigrants are referred for criminal prosecution. In the southwest border patrol sectors in 2010, immigration authorities made about 17 federal criminal arrests per 100 apprehensions. 190 Juan Rocha, a federal public defender, recounted a case in which his client, a migrant farmworker, had been apprehended 53 times before he was criminally prosecuted. After having been returned or civilly removed each time, he was understandably shocked to find himself criminally prosecuted for the first time. 191 The threat obviously had not gotten through to him. Although such statistics often lead lawmakers to call for increased prosecution, the current level of prosecutions is already overwhelming the federal courts, to the point that in 2011, the chief judge of the US District of Arizona declared a judicial emergency. 192 Notably, rates of apprehension of unauthorized migrants are also down significantly in southern California, where Operation Streamline is not active, as well as in districts where the program is ongoing. 193 http://www.cbp.gov/linkhandler/cgov/border_security/border_patrol/usbp_statistics/usbp_fy12_stats/appr_swb.ctt/appr_swb.p df (accessed April 26, 2013). In 2000, there were 1.64 million apprehensions nationwide by CBP; by 2012, there were 357,000. 189 See Valerie Wright, The Sentencing Project, “Deterrence in Criminal Justice: Evaluating Certainty versus Severity of Punishment,” November 2010, http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf (accessed April 26, 2013) (summarizing research indicating enhancing the certainty of punishment produces a stronger deterrent effect than increasing the severity of punishment). 190 Mark Motivans, US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, “Immigration Offenders in the Federal Criminal System, 2010,” July 2012, http://bjs.gov/index.cfm?ty=pbdetail&iid=4392 (accessed April 12, 2013), p. 8. 191 Human Rights Watch telephone interview with Juan Rocha, August 8, 2012. 192 United States Courts, “Judicial Emergency Declared in District of Arizona,” January 25, 2011, http://www.uscourts.gov/News/NewsView/11-01-25/Judicial_Emergency_Declared_in_District_of_Arizona.aspx (accessed April 14, 2013). 193 CBP, US Border Patrol, “Total Illegal Alien Apprehensions by Fiscal Year,” http://www.cbp.gov/linkhandler/cgov/border_security/border_patrol/usbp_statistics/usbp_fy12_stats/nationwide_appr_2 000_2012.ctt/nationwide_appr_2000_2012.pdf (accessed April 26, 2013) (showing apprehensions in San Diego decreased from 152,000 in 2000 to 28,461 in 2012). TURNING MIGRANTS INTO CRIMINALS 70
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H U M A N R I G H T S W A T C H TUR
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All rights reserved. Printed in the
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Summary “I have not lost the desi
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Alicia’s comments above suggest,
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The breadth and scope of criminal p
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Recommendations To the US Congress
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Methodology This report is based on
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I. Background Illegal entry and pre
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13 HUMAN RIGHTS WATCH | MAY 2013
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offenses, as well as “proportiona
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The guideline for illegal entry off
Page 24 and 25: The Obama administration deported a
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Page 28 and 29: II. Criminal Prosecutions Fail to F
Page 30 and 31: Sentencing Commission Data: Limits
Page 32 and 33: 27 HUMAN RIGHTS WATCH | MAY 2013
Page 34 and 35: TABLE 2: PERCENT CHANGE IN THE APPL
Page 36 and 37: The rising number of prosecutions o
Page 38 and 39: Critical Views of Judges and Attorn
Page 40 and 41: According to court records and thei
Page 42 and 43: these defendants, the stages of a f
Page 44 and 45: other court staff, Streamline proce
Page 46 and 47: Diverting Resources from Serious Cr
Page 48 and 49: III. Criminal Prosecutions Impinge
Page 50 and 51: ecently deported, 110 a trend also
Page 52 and 53: again illegally; such individuals
Page 54 and 55: Being in jail in Pecos was hard on
Page 56 and 57: experience, “One or two out of te
Page 58 and 59: probation and did not serve any tim
Page 60 and 61: who was starting to get in trouble
Page 62 and 63: “Though I’m in jail here, I fee
Page 64 and 65: Immigration law separates these fam
Page 66 and 67: were targeting schoolchildren as po
Page 68 and 69: esources. The problems were highlig
Page 70 and 71: Edgar Holguin, an assistant federal
Page 72 and 73: In addition to the trauma criminal
Page 76 and 77: CBP also claims that its statistics
Page 78 and 79: particular migrant. Criminal statut
Page 80 and 81: Bureau of Prisons has contracts wor
Page 82 and 83: there is nowhere to run. There is n
Page 84 and 85: officials had looked at this case:
Page 86 and 87: Upon arrival in Mexico, Carlos, who
Page 88: TURNING MIGRANTS INTO CRIMINALS The
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