Decriminalization of illegal immigration is one of the many new immigration policy ideas put forward by the 2020 Democratic presidential candidates, including abolishing U.S. Immigration and Customs Enforcement and providing government-funded healthcare to illegal immigrants. These ideas—radical or progressive, depending on where you stand—have elicited a strong reaction from proponents and opponents alike.
Divided We Fall aims to bring these differing viewpoints and their advocates together to engage with one another in the arena of ideas. Below, as part of our new “In Response” series, we have provided an overview of an article by Domenic Powell of Jacobin Magazine titled “Decriminalize the Border? Obviously. But Then What?” Then, we asked C.J. Larabee, a legal expert on the other side of the aisle, to respond. We present both sides so you can decide where you stand. Read on to see what you think!
The Proposition: Domenic Powell of the University of Pennsylvania Law School and the American Civil Liberties Union
The title of Domenic Powell’s op-ed in Jacobin Magazine, a self-described socialist quarterly, says it all: “Decriminalize the Border? Obviously. But Then What?” We encourage you to read the piece in its entirety here. Powell begins the article by arguing that decriminalization is “hardly radical” and that prosecuting illegal immigration is stupid, cruel, and racist. He identifies the specific law in question—Section 1325, Title 8, “Improper entry by alien”—which makes entering the United States “at a time or place other than as designated by immigration officers” a misdemeanor offense punishable by a fine and up to six months in prison. He also references to Section 1326, which makes illegal re-entry a felony offense punishable by up to 20 years in prison. Powell describes how illegal immigrants are forced to navigate two complicated legal bureaucracies, civil and criminal, even though most first-time violators are deported under civil proceedings.
Powell principally objects to the criminalization of illegal entry because of the way the statute has been enforced. He argues that criminal prosecution was used to justify family separation under the Trump Administration, for example, and that prosecutors coerce migrants to abandon their claims for asylum under threat of criminal prosecution as well. He argues that the overburdened federal court system cannot sustain the volume of illegal immigration cases, sometimes resulting in “mass trials” involving as many as eighty people at one time, violating the immigrants’ constitutional right of due process.
Powell concludes his piece by objecting to the common “comprehensive immigration reform” proposal, which he characterizes as “Why fix this now…when we could fix everything later?” Powell argues that this policy has been a disaster for Democrats politically as well as the immigrants who need immigration reform so desperately. He believes that while decriminalization isn’t a complete solution, it’s a start, and concludes: “And then we’ll demand more.”
In Response: Written by C.J. Larabee, a graduate of Duke University School of Law, former Assistant U.S. Attorney, and editor of the Connecticut Criminal Procedure
While I believe that we should welcome legal immigrants with open arms and that we should treat all immigrants—legal or illegal—humanely, I disagree with Domenic Powell’s conclusion that we should decriminalize improper entry. I believe that we can take a more enlightened approach to criminal prosecution of illegal entry.
In criminal law, a crime is either “malum in se,” which means morally wrong and necessarily criminal or “malum prohibitum,” which means wrong because we choose to make it wrong. Acts of violence or theft are malum in se whereas gun and drug possession offenses that do not harm other people are closer to malum prohibitum crimes. Illegal entry perhaps defies easy characterization but it does contain some elements of a malum in se crime. Unlike gun or drug possession, it is hard to say that there is ever any situation (aside from asylum cases, which I will discuss later) when society condones illegal entry. Even those in favor of decriminalization generally agree that we should impose civil sanctions such as deportation for improper entry. Perhaps there are some who believe in completely open borders, but that belief is simply contrary to the notion that the United States is a sovereign nation that can determine who may enter and who may not—a determination that is fundamental to the way that the world is currently organized.
It is true that illegal entry and reentry are heavily prosecuted offenses. In 2016, more than half of federal criminal prosecutions were for immigration violations with the vast majority of those prosecutions brought under the statutes for illegal entry and reentry. However, the status of illegal entry as a federal crime does not mean that everyone who commits it must face criminal prosecution. Although lately the government has taken a zero tolerance approach, prosecutors traditionally have exercised discretion over whether to file charges. An enlightened approach might involve prosecuting only the cases where aggravating factors—such as illegal drugs or human trafficking—are present. Additionally, prosecutors could decline to prosecute cases in which there appears to be a valid asylum claim. Certainly, the current “Operation Streamline,” in which the government prosecutes illegal entrants en masse sacrifices the individual consideration to which every defendant charged with a crime is entitled.
Critically, the availability of the misdemeanor of illegal entry can play an important part in the prosecution of more serious immigration crimes. Let’s say that agents see a person attempting to cross the border illegally and that person destroys suspected drugs upon detection. Or that a human trafficker or smuggler crosses illegally and his victim refuses or is unable to testify. Or a person reenters illegally but the proof of his first illegal entry is questionable because of identification issues. In all these instances, which are quite realistic, prosecutors can drop the charge down to the misdemeanor of illegal entry and request a guilty plea. This sort of plea bargaining is typical for many criminal cases, saves both sides the expense and risk of trial, and has received the approval of the United States Supreme Court.
Preventing illegal entry is important for many additional reasons. Although the evidence suggests that prosecuting illegal entry as a criminal offense does not have a strong deterrent effect, it is obviously important to our health and safety to screen immigrants before they enter. Further, it is only fair to those desiring to emigrate legally from areas not contiguous with the United States—whether from the Middle East, Africa, Asia, or elsewhere—that they have the same opportunity to enter as those who approach our southern border. And there is an element of compassion toward those tempting to cross illegally in remote areas that we do not encourage them to make that hazardous journey and or to let them think that life in the United States as an illegal immigrant will be easy.
The United States is not alone in making illegal or improper entry a crime. In fact according to a 2019 Library of Congress study, the United States, in making improper entry a misdemeanor subject to a maximum punishment of six months, has one of the world’s weaker laws for illegal entry. Our treatment of illegal entry is in line with Canada and the United Kingdom.
Yes, our immigration system needs reform. But we should not throw out the baby with the bath water. Maintaining illegal entry as a criminal offense serves important national interests. And it should stay that way.