The Trump administration’s favorite justification for tearing apart families is to point to the fact that many, by crossing the border, have committed a crime. Of course, crossing the border without a visa is merely a misdemeanor, on the same level as shoplifting or public intoxication—and it’s certainly not a reason to kidnap and abuse someone’s children. Now, Texas Democrats are shifting the conversation, advocating for doing away with the criminalization of immigration altogether.
Representative Beto O’Rourke, who is currently challenging Senator Ted Cruz in the midterms, gubernatorial candidate Lupe Valdez, and congressional candidate Veronica Escobar have all made public statements supporting decriminalizing immigration in the last week.
HuffPost provides some disturbing history on the legacy of immigration as a crime:
The law criminalizing unauthorized border crossings dates from 1929 when it was first proposed by U.S. Sen. Coleman Blease, a South Carolina segregationist known for celebrating the lynchings of black men with a ritual dance. But for most of its life, Blease’s law, which was later incorporated into the Immigration and Nationality Act, was rarely used. In fact, until the George W. Bush administration, the U.S. government charged the vast majority of unauthorized immigrants with civil violations, not federal crimes. Treating unauthorized crossing as a civil violation allowed the government to deport unauthorized immigrants without spending huge sums on prosecuting and jailing migrants that U.S. officials planned to deport anyway.
Then, in 2005, officials in the border sector of Del Rio, Texas, ran out of bed space in their civil detention centers. They decided to start using the law criminalizing illegal entry to prosecute immigrants in criminal court. The idea caught on in other border sectors, and within a few years, the government was prosecuting and jailing tens of thousands of migrants annually.
“The United States has built a system on incarcerating migrants,” Escobar told HuffPost. “We really have to evaluate the way that we’ve criminalized migration.”
“It’s time to reform and look at things,” Valdez, who used to work as a Customs agent, told HuffPost. “The majority of people are not coming in to do harm. We still have to have some kind of checking and verifying, but I don’t think coming in here undocumented should be a criminal issue.”
O’Rourke’s comments on the idea of criminalization weren’t quite as clear cut, addressing asylum-seekers specifically. “These asylum-seekers—penniless, at wit’s end, after surviving three weeks on the road, very often with their children—then attempt to do what I think any human would do, which is to request asylum in between the ports of entry,” O’Rourke told HuffPost. “We should not criminalize that.”
Decriminalizing immigration would allow for reforms to how undocumented migrants are treated. While some on the left advocate for abolishing the immigration enforcement entity ICE entirely, decriminalization would make Attorney General Jeff Sessions’ “zero tolerance” policy that led to family separation impossible. That policy required any border crossers to be referred for federal prosecution.
Aside from basic humanity, there are more practical reasons to support decriminalization.
“When we treat asylum-seekers like criminals, the next step is we have to jail them, we have to incarcerate them,” Escobar said. “It’s incredibly costly.”
It’s true that if we stopped criminalizing immigration, the US government would stand to save billions in incarceration costs. But powerful private prison-services corporations like GEO Group would also lose out on a lot of profit from these reforms. A change like this wouldn’t happen without a bitter fight.