As “Zero Tolerance” Cases Skyrocket, Other Prosecutions Slow
New data suggests the Trump Administration’s “zero-tolerance” policy on border prosecutions is forcing Justice Department lawyers to limit their work on other cases.
In addition to the human costs of separating families while parents faced trial, it appears that the explosion of prosecutions of border-crossing violations is hampering the federal government’s ability to prosecute other crimes, including gang violence, drug trafficking, human smuggling, and other serious cross-border offenses. According to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, non-immigration prosecutions in the southwest border districts fell sharply after the policy went into effect.
The zero-tolerance policy began with Attorney General Jeff Sessions’ April 2018 announcement that he was instructing United States attorneys in southwest border districts to prosecute everyone caught entering or trying to enter the country anywhere but at a port of entry. Under federal law, “improper entry” is a misdemeanor. The section of the law highlighted in Sessions’ announcement applies specifically to first-time offenses for improper entry. (As POGO explained in our FAQ on immigration proceedings, regardless of whether they are tried in federal court, people apprehended at the border go before immigration courts to determine whether they may stay in the country.)
In the months following the policy directive, improper entry prosecutions in the five southwestern border districts—the Southern District of California, District of Arizona, District of New Mexico, Western District of Texas, and Southern District of Texas—increased dramatically. In March, before the announcement, federal prosecutors initiated 6,368 cases against people who had been apprehended by Customs and Border Protection, the agency charged with law enforcement at the border, and referred to the Justice Department for prosecution. In June (the latest month with data available), prosecutors began 11,086 new cases, even though there were 3,000 fewer apprehensions than in March.
The TRAC data shows that this is the highest single-month number of prosecutions since at least 2007. Prosecutions spiked under both the Obama and George W. Bush administrations as part of “Operation Streamline,” which also sought to charge everyone caught crossing the border in certain areas. However, under that program—which severely strained prosecutors’ and courts’ resources—prosecutions never exceeded 10,000 per month, though apprehensions were comparable to, and often higher than, this year’s numbers.
Prosecutions of misdemeanor improper entry at the current rate make up a staggering share of all criminal cases at the border. According to TRAC, these cases accounted for 94 percent of federal prosecutions in the five southwestern border districts in June, compared to 86 percent in March.
Misdemeanor improper entry prosecutions seem to be crowding out other federal cases in these districts. TRAC’s data shows 1,093 non-immigration prosecutions in March, but only 703 in June—a 35 percent drop.
This backs up a news report that suggested prosecutors were shifting their enforcement priorities. USA TODAY reported in June that a supervisor in the U.S. Attorney’s Office in San Diego had written in an email that the Office would be “diverting staff” to work on immigration cases, and that it would have to turn away drug-smuggling cases if law enforcement officials could not complete paperwork quickly enough. Capacity limits like this could have ripple effects beyond the federal system. According to the USA TODAY report, the San Diego District Attorney had received more than twice as many referrals of drug cases from federal agents between late May and early June as it had over the same period the previous year. If local authorities are forced to fill gaps for overextended federal officials, they may have to change their own enforcement priorities.
While the numbers are striking, it’s not surprising that other prosecutions are declining. After all, the Justice Department has been scrambling to keep up with increasing numbers of border prosecutions since before the policy change. Last year, in response to executive orders calling for stricter immigration enforcement, the Department spent over $358,000 and assigned a dozen assistant United States attorneys from other offices to the border districts. This May, after the policy change, the Department announced it was hiring 35 additional assistant U.S. attorneys specifically to assist in zero-tolerance prosecutions.
The effects of the capacity shortage have even extended beyond the Justice Department. In July, the Department of Defense agreed to assign 21 military lawyers to serve for up to six months as special assistant U.S. attorneys focusing on immigration cases. A bipartisan group of Senators criticized that decision, pointing out that the Pentagon had declined to assign more lawyers to address domestic violence and child abuse this year on the grounds that there were no available resources.
If prosecuting improper entry misdemeanors—which are relatively minor offenses that typically result in a sentence of time served—comes at the expense of prosecuting other crimes, including felonies, the zero-tolerance policy may ultimately have the net effect of weakening public safety. This seems to be at odds with the Trump Administration’s argument that its hardline enforcement strategy is intended to promote “public safety, national security, and the rule of law.” When combined with the zero-tolerance policy’s documented constitutional problems, its negative effect on the government’s ability to prosecute more serious crimes suggests it is a misguided and harmful policy.
These problems could become even worse if the government continues to ramp up its enforcement of the policy. The TRAC data shows that even with the surge in prosecutions, less than half of all adults apprehended by Customs and Border Protection in June were prosecuted. Even taking into account the fact that the agency has at least temporarily stopped referring parents with children for prosecution in order to avoid separating families, more than 8,000 adults without children were detained that month but not prosecuted. If Customs and Border Protection refers more people for prosecution in the coming months, and if federal prosecutors opt to pursue those cases, it seems likely that other casework will be pushed aside, and due process in immigration proceedings violated, to an even greater extent than is happening now.
As POGO wrote in a letter to him in June, Attorney General Sessions can unilaterally revise or revoke his zero-tolerance directive. If he is unwilling to reexamine it, though, there are other options. The text of the order directs U.S. attorneys to implement the policy “to the extent practicable”—a standard that arguably has already been exceeded. And, POGO reminded the border prosecutors that U.S. attorneys have an obligation to deviate from policy instructions when they come into conflict with constitutional protections like the right to due process or to an attorney, as is the case with zero tolerance.
Many problems with zero tolerance were apparent before this new data came to light. The fact that it appears to be overwhelming the Justice Department’s mission to prosecute serious offenses and dangerous offenders is further evidence that it should be rescinded.
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.