No federal district judge has sent more people to prison than Robert C. Brack, who presides over the US courthouse in the border town of Las Cruces, N.M. Between 2006 and 2012, Judge Brack locked up more than 7,000 defendants — an average of 100 a month. It’s a distinction he would just as soon forgo.
The overwhelming majority of defendants sentenced by Brack are illegal immigrants, prosecuted because they tried to cross the border after having previously been deported. Though many Americans don’t realize it, immigration-related cases now account for nearly 50 percent of all federal prosecutions, reflecting a change in federal priorities that has clogged courtrooms along the US-Mexico border, and filled cells with convicts who pose no danger to the public.
When Brack was first appointed to the bench in 2003, most migrants caught crossing the border without a visa were simply sent back to Mexico. Immigration violations were commonly dealt with in civil proceedings; prosecution was generally reserved for those with serious crimes on their record — such as violent assaults, drug trafficking, or firearms offenses. But under a hard-line policy launched during the Bush administration, anyone caught trying to enter the United States unlawfully a second time could be prosecuted as a felon and jailed upon conviction. The result: a sharp spike in the number of federal prisoners serving time for immigration violations.
That might have been a welcome development if those being prosecuted and incarcerated represented a threat to public safety. The evidence shows the opposite. A decade ago, 42 percent of those prosecuted for illegally entering the United States had previously been convicted of serious crimes; by 2011 that proportion had fallen to just 27 percent. Another 27 percent had no prior felony convictions at all in 2011 — up sharply from a decade ago, when only 17 percent of entry prosecutions involved border-crossers with no prior felony convictions.
As a judge, Brack is duty-bound to apply existing law. But he is under no obligation to deny the injustice of the current system. Federal immigration authorities claim that the sharply increased likelihood that a border apprehension will result in a prison sentence has made the border more secure. But Brack argues that many of those he is compelled to lock up are being branded as felons for nothing more menacing than seeking work as farmhands. Even more poignant are the cases of illegal immigrants who were caught trying to re-enter the country for the most elemental reason of all: to rejoin their American families.
“I didn’t set out to sentence the most people in America,” Brack says. He owes that unwanted record to an immigration system that punishes migrants as if they were hostile foes, and forces judges to throw the book at people who mean us no harm. As the long-overdue immigration bill wends its way through Congress, Americans have to hope that comprehensive reform will soon be followed by common sense in the nation’s courtrooms.