“Zero Tolerance” policy greatly accelerates migrant criminalization through end of 2018

Today, Justice Strategies and Grassroots Leadership released new infographics demonstrating that more than 109,000 migrants were prosecuted for improper entry or re-entry in 2018.  At a time when the Trump Administration is advancing the border wall, increased immigrant detention, and policies such as Remain in Mexico, the sharp increase of entry and reentry prosecutions are a lesser known component of the Administration's crackdown on immigrants and asylum seekers.

Migrant criminal prosecutions, especially for improper entry, peaked during the family separation crisis in May and June that was sparked by then-Attorney General Jeff Sessions’ decision to implement a “zero tolerance” prosecution policy.  Prosecution numbers have maintained historically high levels even after the Trump administration’s executive order to stop the systemic prosecutions of migrant parents.

“The ‘zero tolerance’ migrant prosecution policy established last year by the Department of Justice was at the heart of the family separation disaster from April to June last year.  While family separations have been dialed back, these prosecutions have not been curtailed,” said Judy Greene, director of Justice Strategies. “Criminal prosecutions of migrants for entry and re-entry comprised 57 percent of all federal criminal case filings nationwide in Fiscal Year 2018.  The policy has produced a serious human rights crisis. These laws should be repealed.”

The numbers of criminal prosecutions had fallen towards the end of the Obama administration.

In Fiscal Year 2018, criminal prosecutions of migrants reached an historically high level, with devastating impacts for migrant families and overwhelming federal courts.

Before the implementation of Operation Streamline, a 2005 program started in Del Rio, Texas that mandated Border Patrol refer migrants to the U.S. attorney’s offices for prosecution, migrants apprehended crossing the border were dealt with almost exclusively within the civil immigration system.

Immigrants are now often charged under one of two federal crimes: unlawful entry, a misdemeanor punishable by up to 180 days in jail, or unlawful re-entry of a deported immigrant, a felony punishable by up to 2 years in federal prison, and even more if the immigrant has a prior criminal record. Those prosecuted include asylum seekers, in violation of international law.

"The Trump Administration has used entry and reentry charges for political gain, to advance inhumane policies and public narratives that criminalize migrants and asylum seekers who come seeking safety and a better life. In an age of increasing retaliation against immigrant activists, these charges have also been weaponized to punish detained individuals who speak out against violations of their rights,” said Bob Libal, Executive Director of Grassroots Leadership. “Immigration policy reform must include the repeal of these charges and other policies that criminalize migrants and feed mass incarceration.”

Criminal prosecutions for unauthorized entry were almost exclusively filed within the five federal court districts that span the border with Mexico, with more than half taking place in South Texas alone.

The unauthorized reentry charge was brought against immigrant defendants most often along the southern border, but was charged at least once in each federal court district in the country.  Of the 32,771 re-entry cases filed during 2018, 18 percent were filed in non-border federal court districts.

More information and analysis is available upon request.  All data was originally sourced from the Transactional Records Access Clearinghouse at Syracuse University.

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Grassroots Leadership is an Austin, Texas-based national organization that works for a more just society where prison profiteering, mass incarceration, deportation, and criminalization are things of the past. Follow us @Grassroots_News.

Justice Strategies is a nonprofit research organization dedicated to providing analysis and solutions to advocates and policymakers pursuing more humane and cost-effective approaches to criminal justice and immigration reform. Visit www.justicestrategies.net for more information.