Sessions's call for 'zero tolerance' at the border could lead to incarceration spike

Sessions's call for 'zero tolerance' at the border could lead to incarceration spike
© Getty Images

The "zero tolerance" policy at the southern border announced by Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsConservatives moving to impeach Rosenstein soon: report Senators urge DOJ to probe whether Russians posed as Islamic extremist hackers to harass US military families The Hill's Morning Report — Trump readies for Putin summit: 'He’s not my enemy’ MORE is creating a shift in law enforcement priorities that will likely result in more immigrants in the country illegally in federal prison, policy experts say.

U.S. attorneys are widely expected to shift resources in response to Sessions's memo Friday ordering them to criminally prosecute every illegal entry case referred to them by the Department of Homeland Security (DHS), even first-time offenders.

“They want to send a message ‘Don’t bother coming. Not only are we going to send you back, but before we send you back we’re going to put you in jail,' ” said Eli Kantor, a Beverly Hills immigration lawyer.

Ruthie Epstein, an immigration advocacy and policy strategist at the American Civil Liberties Union (ACLU), said illegal entry and re-entry are already some of the most prosecuted cases and take up a tremendous amount of prosecutorial resources.

“Sessions directed U.S. attorneys to prioritize these even more,” she said. “He wants every single person they can prosecute for illegal entry to be prosecuted.”

In the memo, Sessions told prosecutors to request additional resources if needed to carry out the policy.

ADVERTISEMENT
“Keep us informed and don’t hesitate to give us suggestions for improvement,” he wrote. “Remember, our goal is not simply more cases. Is it to end the illegality in our immigration system.”

The Department of Justice (DOJ) said the new policy is in response to a report from the DHS that showed a 203 percent increase in illegal border crossings from March 2017 to March 2018 and a 37 percent increase from this February to March — the largest month-to-month increase since 2011.

Under the law, a first offense of illegally crossing the border carries a misdemeanor charge punishable by a fine and/or up to six months in prison, while subsequent re-entries carry a felony charge punishable by a fine and/or up to two years in prison.  

“It’s just going to jam up the court system,” Kantor said, since the cases will be heard by federal district courts rather than immigrant courts.

DOJ officials said the individuals who are prosecuted criminally are subject to expedited removal, so it should not have an impact on the immigration court system.

A spokeswoman for the U.S. Attorney's Office for the District of New Mexico said its office has worked with the attorney general's office to institute a zero-tolerance prosecution policy in all border districts. 

She said the policy has resulted in a 1,000 percent increase in illegal crossing prosecutions since fiscal 2016. 

Supporters of the zero-tolerance policy say it will act as a further deterrent of illegal immigration.

“We see through countless examples when you send a very clear message you are serious about enforcing immigration laws, the people contemplating breaking the law respond rationally,” said Ira Mehlman, a spokesman for the conservative Federation for American Immigration Reform.

Immigration advocates, however, say that argument is unfounded.

“Sessions says he's doing this to address illegality in the immigration system, but there's no evidence that criminal prosecutions actually deter unauthorized immigration,” Epstein said.

Angie Junck, a supervising attorney at the Immigrant Legal Resource Center, argues Sessions is merely trying to turn immigrants into criminals to make them easier to deport.

“We’re taking and replicating strategies in mass incarceration that were used to lock up of people of color to disenfranchise them and here doing it to physically exclude people from the U.S.,” she said.

But others aren’t taking Sessions’s memo too seriously, saying it’s more of a political maneuver to curry favor with President TrumpDonald John TrumpReporters defend CNN's Acosta after White House says he 'disrespected' Trump with question Security costs of Trump visit to Scotland sparks outrage among Scottish citizens Ex-CIA officer: Prosecution of Russians indicted for DNC hack 'ain't ever going to happen' MORE than anything else.

“I think he’s just trying to burnish his image in the Trump White House,” said Sen. Richard Blumenthal (D-Conn.) who served as Connecticut’s U.S. attorney from 1977 to 1981.

Sessions has repeatedly been attacked by Trump since recusing himself from the Russia investigation, including as recently as Monday, and Blumenthal said the memo is Sessions’s way of saying “I’m doing stuff. Look at me. I’m part of the team.”

“Like many other communications from Attorney General Sessions, I find it somewhere difficult to understand,” he said. “I think it’s mainly for political consumption.”

Sessions’s memo came two days after Trump signed an order to deploy National Guard troops to the southern border and hours after he ordered federal agencies to end the “catch and release” practice.

Joel Schwartz, a former DOJ attorney in the George W. Bush and Obama administrations, said Sessions is trying to help Trump do what he couldn’t do through legislation: build a border wall.

“He can’t build a physical wall so he’s trying to build a human wall,” he said.

Sen. Orrin HatchOrrin Grant HatchGOP moderates hint at smooth confirmation ahead for Kavanaugh GOP senators introduce resolution endorsing ICE Yale Law School students, alumni denounce Trump Supreme Court pick MORE (R-Utah) is hoping Sessions’s new policy will help bring the number of illegal crossings down.

“Hopefully, it means we won’t have a bunch of people who aren’t citizens in our country acting like citizens and breaking our laws,” he said. “I can empathize with anybody who wants to get things under control.”