On April 6, 2018, then-Attorney General Jeff Sessions directed federal prosecutors to seek criminal charges for all first-time immigration offenses. Though these “improper entry” cases (known as 1325 cases, for their place in the U.S. Code) can be charged as misdemeanors, prosecutors have historically issued civil fines or deportation for these low-level infractions, reserving their limited resources for more serious offenses. But this new policy, which Sessions called “zero-tolerance,” stripped prosecutors’ of their discretion to save resources for more pressing public safety threats.
While the outcry over zero-tolerance has died down, the consequences of the policy in the year since its introduction have been nothing short of abysmal. In an attempt to appear “tough on immigration,” the administration’s focus on largely nonviolent border-crossers has not only triggered a family separation crisis, it has taken away from prosecutors’ ability to focus on more serious crimes, including drug-trafficking and human-smuggling.
When the policy was first announced, zero-tolerance quickly became synonymous with “family separation” as reports of children being separated from their parents during the implementation of Sessions’ policy sparked intense media coverage. The separations were a resultof the fact that, under zero-tolerance, many more migrants were being referred for criminal prosecution and sent to federal jails, where they cannot be kept with children.
So while zero-tolerance and family separation are technically distinct from one another, the massive increase in family separations was a direct consequence of the zero-tolerance policy. Because these terms became interchangeable in media reports, many incorrectly stated that the administration had reversed zero-tolerance after the White House announced it would roll back prosecutions of family units. But officials made it quite clear they would continue to pursue zero-tolerance for adults without families, and they weren’t bluffing.
With federal prosecutors now spending exorbitant amounts of time on these lower-level cases, drug-trafficking prosecutions have plummeted. In June and July of last year, federal prosecutors charged fewer people with drug-trafficking violations than in any month since at least 2001.
A Department of Justice spokesperson cautioned against linking zero-tolerance and the decline in drug prosecutions, noting that multiple factors could affect prosecution numbers. However, just days after the zero-tolerance crackdown began, a Justice Department supervisor in San Diego warned that low-level immigration cases “will occupy substantially more of our resources” and that prosecutors would be “diverting staff, both support and attorneys” to enforcing zero-tolerance.
Indeed, case management records show that attorneys who previously handled some drug-trafficking cases were assigned to the hundreds of new 1325 case prosecutions. The San Diego supervisor’s email, along with the sheer magnitude of the increase in low-level immigration prosecutions — 1325 case prosecutions surged 130 percent from 2017 to 2018 and were higher than they were in any year in at least two decades — suggest a strong link between zero-tolerance and the drop in drug-trafficking prosecutions.
Administration officials also claimed the drop in prosecutions was due to a decline in drugs coming across the border, but this seems unlikely. While Customs and Border Protection apprehensions of individuals trafficking marijuana and cocaine have declined, a New York Times article notes that the agency seized more heroin, fentanyl, and methamphetamine during the last fiscal year than it did in 2017, when those drugs helped drive the number of overdose deaths in the United States above 70,000.
Zero-tolerance has also weakened America’s anti-human-smuggling efforts. An article in The Atlantic spotlights a shift in resources at the Department of Homeland Security away from these more complex investigations and toward lower-level prosecutions. The article reveals that in the first full fiscal year of Trump’s presidency, the number of new human-smuggling cases launched by Homeland Security Investigations, the investigative arm of Immigration and Customs Enforcement, dropped almost 60 percent. Likewise, the Human Smuggling Cell, a special-intelligence unit set up within ICE, dropped to less than half the staff it had in 2016.
The irony of these results is astounding. The entire justification for this immigration crackdown was premised on stopping drugs and human traffickers from pouring over the border. Unsurprisingly, directing the full force of immigration enforcement toward smaller, first-time border crossers has had the opposite effect.
While zero-tolerance for single adults is still in effect, 1325 case prosecutions have declined since the administration reined in zero-tolerance for family units, largely because families have come to represent the majority of border crossers. But this change in demographics is a very recent phenomenon that could easily and quickly reverse course. And even if the current trend continues, the administration has expressed a desire to reinstitute zero-tolerance for families once additional bed space becomes available.
Granting enforcement agencies and prosecutors the discretion to prioritize those cases that most directly threaten public safety is common sense. But as is often the case when policy is guided by fear and impulse instead of a sober analysis of the facts, we come up with a cure much worse than the disease. This has undoubtedly been the case with Trump’s zero-tolerance policy. Those concerned with public safety — whether liberals or conservatives — should seek to reverse it.
Image credit: Andrew Cline